        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  June 24, 2014 Session

             STATE OF TENNESSEE v. JAMES CODY BURNETT

                   Appeal from the Criminal Court for Knox County
                          No. 95309    Steven Sword, Judge




               No. E2013-01369-CCA-R3-CD - Filed September 3, 2014


The Defendant, James Cody Burnett, pleaded guilty to one count of vehicular homicide by
intoxication with an agreed sentence of eight years and the manner of the service of the
sentence to be determined by the trial court. After a hearing, the trial court ordered the
Defendant to serve his sentence in confinement. The Defendant filed a Rule 35 motion to
reduce his sentence, which the trial court denied. The Defendant filed an appeal of both the
trial court’s sentence of confinement and its denial of his Rule 35 motion to reduce his
sentence. We consolidated those two appeals. After a thorough review of the record and
applicable authorities, we affirm the trial court’s sentencing of the Defendant and its denial
of his motion to reduce his sentence.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, JR., J., joined.

Mark E. Stephens, District Public Defender, and Robert C. Edwards, Assistant Public
Defender, Knoxville, Tennessee, for the Appellant, James Cody Burnett.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr.,
and Leland L. Price, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                         OPINION
                                          I. Facts

       This case arises from a vehicular collision that occurred on December 8, 2009. A
Knox County grand jury indicted the Defendant for one count of vehicular homicide by
intoxication, one count of vehicular homicide by reckless driving, two counts of driving
under the influence (“DUI”), one count of failure to maintain a lane of traffic, one count of
failure to provide proper evidence of financial responsibility, one count of violation of the
safety belt law, one count of violation of the state registration law, and one count of failure
to carry a vehicle certification of registration. Pursuant to a plea agreement, the Defendant
entered a guilty plea to one count of vehicular homicide by intoxication, a Class B felony,
in exchange for a sentence of eight years and for the other charges against him being
dismissed.

                            A. Guilty Plea Submission Hearing

       At the guilty plea submission hearing, the Defendant’s counsel noted that, as a result
of this accident, the Defendant had sustained serious injuries and was hospitalized for
approximately sixty days. The Defendant’s injuries included head trauma, which resulted
in some short-term memory loss. Counsel stated that the Defendant was competent to enter
the guilty plea.

      The State informed the trial court that, had the case gone to trial, the evidence would
have shown:

              That on December 8th of 2009 at around 7:50 in the morning, actually,
       shortly before that, [the Defendant] was driving northbound on Maynardville
       Highway. Just before the highway narrows to two lanes, there’s a stop light.
       He had stopped at that stop light. We do have a witness who saw him there.
       He had fallen asleep at the stop light to the point where the traffic that had
       backed up behind him began circling around him, [after] the third or fourth car
       that had circled around him, he woke up and continued to drive northbound on
       Maynardville Highway.

                He proceeded for about half a mile down the road and then appeared to
       fall asleep again. His car began to drift within his lane and then went into –
       at this point there’s two lanes – the oncoming southbound traffic. The first car
       was able to avoid him. The second car did not have enough time to get out of
       his way. That car’s driver was named Dawn Reynolds.

               Ms. Reynolds’ car took the impact on her driver side door of the car
       driven by [the Defendant], and she died instantly as a result of that car hitting.
       She essentially took all that force of his car hitting her directly on her side of
       the car. She did die at the scene as a result of her injuries. They were not able

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       to revive her at the scene.

               [The Defendant] gave a blood sample. The results of that blood sample
       came back as containing methadone in the amount of .13 micrograms per
       milliliter. This is a drug that [the Defendant] – we were going to prove to you
       that he has been on for a number of years. He’s aware of its side-effects.
       However, he is also aware or should have been aware that he shouldn’t have
       mixed it with promethazine. There’s [sic] a bottle of promethazine next to him
       in the car. It’s actually prescribed to who we believe was his girlfriend. The
       amount of promethazine in his system was .14 micrograms per milliliter.

              As a result of these two drugs mixing – and there are a couple of other
       drugs, but those were administered by the EMTs. As a result of these two
       drugs being in his system . . . it caused him to be so sleepy that he fell asleep
       behind the wheel of a car.

        The Defendant testified that he had achieved a GED and that he was twenty-six years
old. He had the ability to read and write. The trial court explained to the Defendant his
rights and the potential sentences he faced. The trial court then accepted the Defendant’s
guilty plea.

                                     B. Sentencing Hearing

        The State offered the testimony of Maudie Ward, the victim’s mother, who said that
she was now raising the victim’s children since the victim’s death. The death of the victim,
who was her oldest child, “has almost destroyed [her] life.” Ms. Ward said that, additionally,
the victim’s death had been extremely hard on the victim’s children. The victim’s son told
Ms. Ward that he could not sleep because he kept dreaming about his mother. He further
said that he wanted to be with his mother. Ms. Ward said that the victim was the sole
provider for her children and that she was on her way to work to provide for them when she
was killed. In light of the fact that the Defendant was using controlled substances at the time
of the accident, Ms. Ward asked the trial court to sentence the Defendant to the most severe
punishment possible.

        The victim’s father, Sam Ward, testified that the victim’s body was so mangled after
the accident that the funeral home employees told the family not to touch the body. Mr.
Ward said that the victim’s hands had to be held together with special gloves. Mr. Ward also
said that one of the victim’s daughter’s birthday was on the day of the accident, and he said
that the victim’s death had significantly impacted this daughter, hurting her “quite a bit.” Mr.
Ward said that the family was “making it” and asked that the “best be done.”

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        April Baer, the victim’s sister, testified and asked that the trial court give the
Defendant the most severe possible punishment for killing her sister. Ms. Baer said that her
sister’s body was so traumatized, it could not be embalmed. The victim’s body had bruising
and there were lacerations covering her face. She said that the victim was the mother of three
beautiful children. Ms. Baer said that the victim’s death had devastated her family.

       The State offered the presentence report and the TBI report analyzing the Defendant’s
blood sample, along with a treatise that helped explain the level of “promethazine” in the
Defendant’s system. The State also offered records from the methadone clinic where the
Defendant was being treated for his addiction issues.

       The State asked the trial court to order that the Defendant serve his sentence in
confinement. The State noted that there were three substances in the Defendant’s system at
the time of the accident. The first substance was methadone, which he was using to treat a
heroin addiction. The second substance was cough medicine. The third substance was
promethazine, which was proscribed to his girlfriend to address her morning sickness. The
State noted that the Defendant was aware that the methadone could cause drowsiness.
Further, he was aware that the use of methadone in combination with other narcotics or other
sedatives could cause undesirable side effects.

       The State informed the trial court that one of the exhibits showed that the Defendant
had a history of not complying with the methadone clinic. He tested positive for oxycodone
in February 2008. He was placed on “relapse prevention,” but he tested positive for
oxycodone again in June and August 2009. The Defendant had also failed to show up for his
“medication count,” which is a requirement of the methadone program.

       The State noted that the Defendant had a long history of drug abuse, dating back to
his middle school years. He had used different types of drugs, getting progressively worse,
and he had previously failed to comply with a sentence involving release into the community.
The Defendant had not paid his fine and costs on a conviction for failing to show his driver’s
license. The State argued that the Defendant had no hesitation about committing a crime
when the risk to human life was great, in that he was aware that he was sleepy, that he had
been sick, and that methadone causes drowsiness.

        The Defendant’s counsel offered a report showing that the Defendant had been drug
tested seven or eight times since the car accident and each time his test was “clean.” Counsel
said that the Defendant had been working on inventory at Home Depot the night before this
accident. He was sick but did not want to miss work. He took cough medicine and his wife’s
phenergan, which is a non-convulsant used to combat morning sickness. Defense counsel

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noted that this case was entirely different from one where a defendant was at a bar or a
restaurant drinking beers before driving. The Defendant took medication in order to be able
to work. Defense counsel said he was unsure whether the Defendant understood that taking
phenergan was the same as taking a narcotic with his methadone. Defense counsel stressed
that the Defendant was not a man who was taking medication to have fun or to party but
instead so that he could work. Defense counsel explained that the Defendant had taken
oxycontin in 2009 and 2010 as a result of breaking “every bone in his body.” He said that
the Defendant was not on drugs and was “clean.”

       Defense counsel discussed the Defendant’s limitations, including brain damage, short-
term memory loss, difficulty breathing, and speech impediments. As a result of his injuries,
the Defendant had applied for social security disability and had undergone two psychological
evaluations. An administrative law judge had found the Defendant “totally disabled.”
Defense counsel said that the Defendant showed a potential for rehabilitation.

       Based upon this evidence, the trial court sentenced the Defendant as follows:

               The only issue that we’re dealing with here today is not the length of the
       sentence, but the manner that it’ll be served, and the legislature tells us, “To
       implement the purposes of this chapter the following principles to apply.
       Sentences involving confinement should be based on the following
       considerations: confinement is necessary to protect society by restraining a
       defendant who has a long . . . history of criminal conduct. Confinement is
       necessary to avoid depreciating the seriousness fo 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,” and then
       they give us some additional considerations in all sentencing.

              “The . . . sentence imposed should be no greater than that deserved for
       the offense. Inequalities that are related to any purpose other than this chapter
       should be avoided. The sentence imposed should be the least severe measure
       necessary to achieve the purposes for which the sentence is imposed,” and then
       you consider the potential, lack of potential for rehabilitation or treatment of
       the defendant, and also we’re encouraged to use alternatives to incarceration,
       including requirements of reparation, victim compensation, or community
       service.

             And so that’s sort of the overriding principles that the Court has to
       consider, and one of the things that usually we look at, enhancement factors

                                              -5-
and mitigating factors, to determine the appropriate length, but it also plays
some role into the manner of service, and both sides have pointed to some of
the enhancement and mitigating factors that have been set forth by the
legislature. So let me address those now.

       First, the [S]tate relies on enhancement factor No. 1 that says the
[D]efendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range. We
all agree that [the Defendant’s] a range I standard offender. So any
convictions or criminal behavior would fit into that category. His criminal
history is minor as far as the courts are concerned. He had that prior no
driver’s license in ‘06 which is not . . . considered a serious offense, and then
I believe he had a juvenile shoplifting. They may have gone through first
offender or something on it. So prior to this, his legal criminal history was
minimal.

        Now, the [S]tate makes a good argument that [this factor] involves
criminal conduct as well, and by [the Defendant’s] own admissions, he does
have a history of criminal conduct of using a controlled substance. Started out
with marijuana at a young age, then got hooked on the Oxys and Roxys, and
that is significant, in my opinion, and does play some role. I don’t know how
much from the perspective as an enhancement factor as it does just in
considering the facts and circumstances of this particular case, and how that
plays into the sentencing principles. So I do think that is something to be
considered.

        I’ll also point out that [the Defendant], although he did seek treatment
on his own, which as his attorney said is commendable and is rare in this
society, but then he did have a relapse . . . on February 20th, 2008, he was
positive for oxycodone, and then this wreck I believe occurred on . . .
December 8th of 2009. So within . . . a year of that. Apparently, he’d been
clean before. So I think that there is some significance that he continued to
engage in criminal behavior. I’m not sure how much weight that’s entitled to
. . . but . . . it does play some role in the general sentencing principles
concerning the circumstances of this case.

       And then the [S]tate also points to enhancement factor No. 10 that says
a defendant had no hesitation about committing a crime when the risk to
human life was high. I think at the time that [the Defendant] was ingesting
these substances, he probably did not see that as committing a crime. I think

                                       -6-
the Attorney General’s probably right, when . . . he should have known the
effect these substances were having on him and certainly when he was asleep
at the stop light, but I don’t think that that enhancement factor carries any
weight here, to me. . . .

        Now, the defense cites some mitigation starting with No. 6, that . . .
“The defendant, because of youth or old age, lacks substantial judgment in
committing the offense.” He was 23 at this time. With his minor criminal
history, I guess you’d look at that and say he was young, but I think his history
indicates that he didn’t lack a maturity in this area. [The Defendant] had been
using controlled substances for years at this point and knew what negative
effects it had on him, and so I think he had a greater knowledge at age 23 than
many adults have much older than him concerning the effect of these
substances that he ingested, and so I don’t think that mitigation factor is
entitled to much, if any, weight at all, ‘cause I think he knew. He’s more
experienced than most.

        And then the defense cites No. 11 that says, “The defendant, although
guilty of the crime, committed the offense under such unusual circumstances
that it’s unlikely that a sustained intent to violate the law motivated the
criminal conduct.” In this case, you know, usually criminal offenses,
somebody is engaging in intention[al] and knowing behavior, as far as wanting
to commit an offense, and I don’t think there’s any evidence that [the
Defendant] intended to cause this wreck to kill [the victim], and so, yes, he
was intentionally and knowingly taking these substances, but I don’t think it
rises really to the level of somebody engaging in conduct that they thought at
the time was necessarily criminal. It certainly affected his judgment and his
ability to . . . decide on whether or not to drive, but I think that mitigation
factor does apply and is entitled to some weight.

        And then there’s a catch-all, 13, that says, “Any other factors consistent
with the purposes of this chapter,” and the defense has cited the severe
physical injuries that [the Defendant] has suffered in this. That’s a difficult
one for the Court to weigh. I think it is entitled to some degree of mitigation
in that how he performs in a prison setting or how he’d perform on probation
certainly could be affected by both his physical injuries as well as the
personality change, and as [defense counsel] points out, sending him to the
penitentiary could result in him suffering even greater harm because of his
personality issues. So I think that probably the physical injuries are entitled to
some degree of mitigation. I’m not sure that it weighs very heavily in my

                                       -7-
       thinking on this, and I’ll address that again here at the conclusion of my ruling.

                And then the defense cites the [D]efendant’s family. His children live
       with him and his grandmother. I’m not really sure how that plays into a role
       of mitigation. I’m sure they want him there, but I fail to see how that mitigates
       in any way this case, and they point out that he has support of family and
       friends. That’s mitigation to the extent that he has support that could help him
       be . . . successful on probation, and I think that should be considered in that,
       rather than as mitigation as to whether or not he can be successful on probation
       or be rehabilitated, but it . . . should be considered in that factor of whether or
       not he can be rehabilitated.

              And then finally they point out that he’s been free from any controlled
       substances. Certainly the testing in the last month has shown that he’s been
       free. With his physical conditions, I imagine he’s been under so much medical
       care that he[] probably – has more medication now than he did when he was
       doing it recreationally. So, anyway, I’m not sure . . . how much weight that
       should give, but it is some mitigation in that at least he hasn’t continued in the
       same substance use that created this incident that we’re here for today.

        The trial court examined the sentencing considerations pertaining to confinement. It
found that neither the first factor, that confinement is necessary to protect society by
restraining a defendant who has a long history of criminal conduct, nor the third factor, that
measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant, applied. The trial court then turned to look at the second
factor, whether confinement was necessary to avoid depreciating the seriousness of the
offense or is particularly suited to provide an effective deterrent to others likely to commit
similar offenses. The trial court stated:

               Let me address the first part. First, confinement is necessary to avoid
       depreciating the seriousness of the offense. Now, I have heard that . . . some
       lawyers . . think that . . my approach is whenever there’s a death, that
       somebody’s going to jail, and I can assure you that that is not true. I think that
       it’s very serious, and I obviously have a high value of human life, but there are
       times that probation is appropriate even when there has been a death, and I’ve
       done that. I’ve given people probation when there’s . . . been a death, and so
       I don’t look at this and say automatically confinement is necessary to avoid
       depreciating the seriousness of the offense.

              I think you have to look at the specific facts in that given case, and


                                               -8-
[defense counsel] makes some good arguments today about what was going on
in [the Defendant’s] life at the time, and the [S]tate makes some good
arguments too about what led up to that. When I come down to it, though, I
look at – you really struggle with this case, as [defense counsel] was saying,
with the results of the conduct. You know, the results of the conduct are
horrific, and they . . ., to some extent, cry out for justice, but I think you have
to look beyond just the results of this but actually at the behavior and so I’m
couching my evaluation of this, is confinement necessary to avoid depreciating
the seriousness fo the offense, with the behavior that [the Defendant] engaged
in on that day. The results are horrific, no doubt about it.

        Here’s where I come down on his behavior. This was not a situation
where [the Defendant] ingested some cold medication and some nausea
medication that morning and had a wreck. I certainly think that that is
something that can happen to just about anybody. What is significant to me,
though, is that before this wreck [the Defendant] had been on methadone for
a couple of years, and this is somebody who is . . . continuing to ingest this
substance, even though it’s one that’s less harmful than what he was addicted
to, is continuing to engage and ingest this substance that has an effect on . . .
his mental processes and his ability to function, and so this is somebody that
has a history of this. Even though he did it in the sense of treatment, he’s
continuing to use this substance, and on top of that, he has these additional
things that he probably took innocently that affected him to the extent that he
could not even stay awake while driving a car which is what resulted into [sic]
these horrific offenses today.

        And so when I look at that, I think his behavior leading up, not just that
day, but the years leading up to that, create a seriousness here that would be
depreciated if I don’t give him some form of confinement, and so I think that
that . . . factor principle does apply in this case, and the other one, is
confinement particularly suited to provide an effective deterrence to others
likely to commit similar offenses, and the [S]tate argues that I need to make a
statement in Knox County, this happens over and over again, and that’s true.
I’m not much though on statement sentencing. . . . [I]f somebody needs to
make a statement, that needs to come through the legislature . . . .

       What I have to look at is this particular case. Is confinement
particularly suited to provide an effective deterrence to others likely to commit
similar offenses, and I think that is entitled to some weight and some
consideration in this particular case, because . . . we’ve had at least two people
I know that have pled guilty today, and one of them I suggested he stick

                                        -9-
around and listen to this sentencing hearing, because it is, not just in Knox
County, but all over the whole state and the country, behavior that has been
repeatedly engaged in, and I don’t know that there’s anything particularly
suited about this community that it’s such a huge problem. It’s a big problem
everywhere, and I think when that problem rises to the level where you take
someone’s life, then it can be an effective deterrence to others to impose a
sentence of confinement. So I think some jail time is warranted in this case.

       One of the options the Court has is split confinement where he can be
ordered to serve a portion up to a year in local detention, and I’ll be honest
with you, that’s what I’ve been wrestling over today. I think the facts of this
particular case, [the Defendant’s] history leading up to what happens to [the
victim] requires jail time. My question is, is how much?

        An eight-year sentence as range I, [would] be eligible for parole after
two and a half years, and [defense counsel] makes some good arguments about
whether or not [the Defendant] can function in that environment, and I actually
have greater concerns about him in the local detention than I do in the
Tennessee Department of Corrections [sic], and so I’ve weighed through that,
what I balance is . . . that enough of an effective deterrence and also will that
avoid deprecating the seriousness of the offense and achieve the ends of justice
in this case, and I’ve come to the conclusions that it would not.

        So I believe that confinement is necessary in this case. I also . . .
believe because of the extensive use of methadone over the years and the
inability to get off of that and to continue to drive a vehicle after knowing that
he can’t stay awake being stopped at a stop light, that split confinement is not
sufficient.

       And so, [Defendant], I am going to order that you serve this eight years
in the Tennessee Department of Corrections [sic]. I am going to recommend
the very special needs for [the Defendant]. I think that [defense counsel] raises
sufficient argument today to be concerned about [the Defendant’s] safety in
that community, and I’m going to recommend to the Tennessee Department of
Corrections [sic] that he be placed in special needs.

The Defendant appeals this judgment by the trial court.

                       C. Motion to Reduce Sentence

After sentencing, the Defendant filed a Rule 35 motion to reduce his sentence, which

                                      -10-
he filed under seal.1 In the motion, defense counsel noted that the Defendant had not
disclosed the impetus to his beginning to abuse drugs in middle school. After sentencing,
the Defendant disclosed that he and three other young men had been victimized by a family
member for an extended time period, multiple years, which resulted in significant emotional
stress. The perpetrator of these offenses was charged with multiple counts related to the
victimization, resulting in the Defendant having to repeatedly testify and relive these events.
The perpetrator was ultimately convicted and sentenced to a lengthy prison term.

         The motion offered scientific research showing that when a child suffers this type of
event, or events, the consequences affect the psychological and neurodevelopment of the
child. The defense offered other research correlating this type of childhood trauma with
illicit drug abuse. The Defendant, as a result of the abuse, turned to drugs as a coping
mechanism to obliterate his negative feelings.

       The motion indicated that the Defendant, at the time of sentencing, still felt so
ashamed by what he was forced to endure that he did not share that information with his
attorneys. Defense counsel opined that the Defendant suffered post-traumatic stress
disorder. The motion asserted that the fact of the Defendant’s childhood victimization
“changes the sentencing dynamics in this case.” Further, it asserted that, had this fact been
properly before the trial court at the time of sentencing, the trial court “would have made a
different decision.”

        The trial court denied the Rule 35 motion finding:

               In the [D]efendant’s well reasoned and detailed brief, he claims that the
        court placed great emphasis on the [D]efendant’s lengthy drug use in the
        decision to sentence the [D]efendant to incarceration. He argues the
        underlying history leading up to his drug use should be considered as
        mitigation of this factor in the court’s reasoning. The court agrees that the
        [D]efendant’s history of continued methadone use over a two year period
        played a significant role in the sentence. The court further agrees that the
        decision to incarcerate the [D]efendant was a difficult one. Counsel for the
        [D]efendant presented an outstanding argument during the sentencing hearing
        in favor of a less restrictive sentence. However, for the following reasons, the
        court now denies the [D]efendant’s request for a reduction in the sentence.



        1
          This Court denied the Defendant’s motion to place his brief containing the facts relevant to this
argument under seal. We ruled that the information contained in this motion could be referred to by the
parties in their briefs and during oral arguments. In respect of the Defendant’s desire for privacy, we will
attempt to address the information contained in the motion in a cursory and general manner.

                                                   -11-
              The [D]efendant’s history of drug abuse was not the only factor
       weighing in favor of incarceration in the court’s decision making process.
       Besides the tremendous devastation in the loss of life, the court was struck by
       the [D]efendant’s knowledge on the day of the accident that the substances he
       had ingested were preventing him from driving safely. Knowing he could not
       stay awake, he continued to drive. This conscious choice on the day of the
       accident weighed greatly in the court’s decision. Furthermore, the [D]efendant
       chose not to reveal his history of victimization to his counsel prior to the
       sentencing hearing. This is not a situation where newly discovered evidence
       has been uncovered.

               The Advisory Commission Comments to Rule 35 state, “[t]he intent of
       this rule is to allow modification only in circumstances where an alteration of
       the sentence may be proper in the interests of justice.” Although the sentence
       of incarceration was a narrow and difficult decision for the court, the court is
       of the opinion that the evidence concerning the [D]efendant’s history of
       [victimization] would not have made a difference in its ultimate ruling.
       Therefore, the interests of justice do not require a reduction of the sentence in
       this case.

       The Defendant also appeals this judgment.

                                         II. Analysis

       On appeal, the Defendant contends that that the trial court erred when it denied him
an alternative sentence and ordered his sentence to be served in confinement. He further
contends that the trial court erred when it denied his Rule 35 motion to reduce his sentence.

                                 A. Alternative Sentence

       The Defendant asserts that his incarceration is “inconsistent with the purpose and
principles of the Tennessee Sentencing Reform Act of 1989 and the 2005 amendments
thereto.” He argues that his sentence of confinement was not necessary to provide an
effective deterrent, according to the relevant statute. The Defendant contends that the trial
court’s ruling makes a “clearly erroneous assessment of the evidence to the extent it is based
on evidence deduced below or relies upon evidence that was simply never presented.” He
asks this Court to conclude that the trial court abused its discretion and to reverse the trial
court’s judgment.

       The State counters that our review is limited according to recent case law and that the


                                             -12-
trial court’s judgment is “presumptively reasonable.” See State v. Caudle, 388 S.W.3d 273,
278-79 (Tenn. 2012). The State notes that the trial court considered the relevant evidence
and set forth the reasons for the Defendant’s sentence. The State asserts that we should,
therefore, affirm the Defendant’s sentence.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285,
286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The
reviewing court should uphold the sentence “so long as it is within the appropriate range and
the record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences
within the appropriate range and properly applies the purposes and principles of the
Sentencing Act, its decision will be granted a presumption of reasonableness. Id. at 707.

        Recently, our Supreme Court extended the Bise standard to appellate review of the
manner of service of the sentence. The Court held that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” Caudle, 388 S.W.3d at 278-
79. We are also to recognize that the defendant bears “the burden of showing that the
sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining the proper sentence, the trial court must consider: (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 the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant's own behalf about sentencing. See T.C.A.
§ 40-35-210 (2012); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of


                                              -13-
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2010).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals
       of society, and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration.

       In this case, after much consideration, the trial court based its denial of an alterative
sentence on factor two, that confinement was necessary to avoid depreciating the seriousness
of the offense or confinement was particularly suited to provide an effective deterrence to
others likely to commit similar offenses. The trial court found that there was a need for
deterrence, giving that consideration “some weight,” and found that confinement was
necessary to avoid depreciating the seriousness of the offense. The trial court highlighted
the fact that the Defendant chose to drive after ingesting substances that he knew would
make him sleepy and that he chose to drive after falling asleep at a stop light. After making
this choice, he again fell asleep while driving, hitting and killing a mother of three who was
on her way to work.

        The trial court considered the pertinent facts of this case and appropriate sentencing
principles. The trial court denied alternative sentencing based on the nature of the offense
and to avoid depreciating the seriousness of the offense. The Defendant has not established
that the trial court abused its discretion by denying him an alternative sentence.

        The Defendant specifically argues that the trial court based its decision on deterrence
alone, and so it should have considered additional factors enumerated in State v. Hooper, 29
S.W.3d 1 (Tenn. 2000). We disagree. The trial court based its denial on both the nature of
the offenses and the necessity to avoid depreciating the seriousness of the offense.
Therefore, the court was not required to consider the factors discussed in Hooper. Hooper,
29 S.W.3d at 10, 11 (holding that a denial of an alternative sentence may be “based solely
on a need for deterrence” under certain circumstances.). The trial court did not abuse its
discretion, and its failure to mention each of these factors is not a basis for reversal by this
Court. See State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The Defendant is not entitled
to relief on this issue.




                                              -14-
                              B. Rule 35 Motion to Reduce Sentence

        The Defendant next contends that the trial court erred when it denied his Tennessee
Rule of Criminal Procedure 35 motion to reduce his sentence. In his motion the Defendant
offered evidence that his drug use was a coping mechanism developed as a result of suffering
severe abuse at the hands of a family member. The Defendant notes that his intoxication was
not the result of a desire to pursue personal pleasure. Further, he states that he is a good
candidate for rehabilitation. The State counters first that the Defendant waived this issue by
failing to specifically address Rule 35 in his brief. Further, the State asserts that the issue is
without merit because Rule 35 does not vest the Defendant with a remedy as of right and that
the Defendant has failed to show that the trial court abused its discretion in denying the
motion.

       Tennessee Rule of Criminal Procedure 35 provides that:

       (a) Timing of Motion. The trial court may reduce a sentence upon motion filed
       within 120 days after the date the sentence is imposed or probation is revoked.
       No extensions shall be allowed on the time limitation. No other actions toll the
       running of this time limitation.

       (b) Limits of Sentence Modification. The court may reduce a sentence only to
       one the court could have originally imposed.

       (c) Hearing Unnecessary. The trial court may deny a motion for reduction of
       sentence under this rule without a hearing.

       (d) Appeal. The defendant may appeal the denial of a motion for reduction of
       sentence but shall not be entitled to release on bond unless already under bond.
       If the court modifies the sentence, the state may appeal as otherwise provided
       by law.

       This rule does not “vest the defendant with a remedy as of right.” State v. Elvin
Williams, No. M2006-00287-CCA-R3-CO, 2007 WL 551289, at *1 (Tenn. Crim. App., at
Nashville, Feb. 22, 2007), no Tenn. R. App. P. 11 application filed. The Advisory
Commission Comments to Rule 35 explain that “[t]he intent of this rule is to allow
modification only in circumstances where an alteration of the sentence may be proper in the
interests of justice.”

       Our Supreme Court has explained that “appeals from Rule 35 motions to reduce
sentences are separate and distinct from appeals seeking review of the original judgment,
including the sentence imposed [in that the] denial of a Rule 35 motion is not the equivalent

                                              -15-
of imposing a sentence but simply reaffirms the sentence previously imposed.” State v. Ruiz,
204 S.W.3d 772, 777 (Tenn. 2006). This Court examines Rule 35 motions to reduce
sentences under an abuse of discretion standard. Id.; State v. Irick, 861 S.W.2d 71, 75 (Tenn.
Crim. App. 1993). The trial court abuses its discretion “only when the trial court has applied
an incorrect legal standard, or has reached a decision which is illogical or unreasonable and
causes an injustice to the party complaining.” Ruiz, 204 S.W.3d at 778. The purpose of the
rule is “to allow modification in circumstances where an alteration of the sentence may be
proper in the interest of justice.” State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1993).

        The Defendant asserts that, because of the revelation of his past history, which was
the cause of his original drug use, his sentence of confinement should be altered. The trial
court reviewed the evidence and the Defendant’s motion and concluded that this history did
not change the facts presented at the sentencing hearing. Those facts included that the
Defendant chose to use substances in combination with methadone that he knew would make
him sleepy, that he continued to drive even after falling asleep and waking at the wheel, and
that he again fell asleep while driving, crossed over the center line, and killed the victim.
The trial court, while sympathetic to the Defendant’s past, ultimately ruled that the interests
of justice did not necessitate a sentence reduction. After our review, we conclude that the
trial court did not abuse its discretion in this regard. The Defendant is not entitled to relief
on this issue.

                                       II. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the
trial court did not abuse its discretion when it sentenced the Defendant or when it denied his
Rule 35 motion to reduce his sentence. Accordingly, we affirm the trial court’s judgment.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




                                              -16-
