             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1998 SESSION
                                                        August 14, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,               )    No. 03C01-9704-CC-00119
                                  )
      Appellee                    )
                                  )    BLOUNT COUNTY
V.                                )
                                  )    HON. D. KELLY THOMAS, JR.,
SHAWN T. O’MALLEY,                )    JUDGE
                                  )
      Appellant.                  )    (Sentencing)
                                  )
                                  )


For the Appellant:                     For the Appellee:

Mack Garner                            John Knox Walkup
District Public Defender               Attorney General and Reporter
419 High Street
Maryville, TN 37804                    Marvin E. Clements, Jr.
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493


                                       Michael L. Flynn
                                       District Attorney General

                                       Philip H. Morton
                                       Assistant District Attorney
                                       363 Court Street
                                       Maryville, TN 37804




OPINION FILED: ___________________



AFFIRMED



William M. Barker, Judge
                                                    OPINION


         The appellant, Shawn T. O’Malley, appeals as of right the sentence he received

in the Blount County Circuit Court as a result of his guilty plea to the offense of

vehicular homicide. Appellant was sentenced to serve eight (8) years in the

Department of Correction as a Range I offender. On appeal, he contests only the trial

court’s denial of alternative sentencing. We affirm.

         Around 11:00 p.m. on the evening of November 6, 1995, appellant and the

victim, Glenn Miller, were leaving an exotic night club in Knox County. Both appellant

and the victim had been drinking. Appellant testified at the sentencing hearing that he

drank four beers during the three hours that they spent at the club, while the victim

drank substantially more.1 Appellant was the designated driver.2

         As they left the club, the victim stated that he needed to use the restroom and

said that he was going to urinate on a police car that was parked in the parking lot.

Although appellant cautioned against it, the victim walked toward the police car.

Appellant got into his car and waited for the victim. Suddenly, the victim opened the

passenger side door and started screaming for the appellant to “get the f--- out of

there.” Appellant sped out of the parking lot as an officer from the Knox County

Sheriff’s Department pursued. Appellant drove down Alcoa Highway and then turned

on Singleton Station Road. At some point, officers from the Blount County Sheriff’s

Department and the Alcoa Police Department joined the chase, which covered

approximately six miles. While driving on Singleton Station Road, appellant lost

control of his 1986 Camry on the wet roadway and crashed into a utility pole. The

victim died as a result of the crash.



         1
             Appellan t’s blood alc ohol con tent that eve ning was .13%.

         2
          Tes timo ny at th e sen tenc ing he aring indica ted th at the victim had b een in a se rious mo torcyc le
accident several months earlier and was still recuperating from his injuries. Because he still needed
assistance with a number of activities, the victim had been living with appellant for several weeks. At the
time of this incident, the victim was unable to drive and had been relying on the appellant for
transportation.

                                                          2
        Although appellant denied any memory of the crash or what happened

afterwards, police reported that he ran from the scene after the wreck and struggled

with officers when apprehended. Appellant was later indicted and pled guilty to

vehicular homicide by intoxication.3 The plea agreement recommended the minimum

eight (8) year sentence, with the trial court to decide the manner of service of the

sentence. Following the sentencing hearing, the trial court ordered the appellant to

serve his sentence in the custody of the Department of Correction.

        Appellant argues on appeal that he was entitled to some form of alternative

sentencing because the circumstances of his offense did not justify a complete denial

of probation. He asks this Court to grant him a sentence of split confinement. We

decline to do so.

        When a defendant challenges his or her sentence, we must conduct a de novo

review of the record. Tenn. Code Ann. §40-35-401(d) (1990). The sentence imposed

by the trial court is accompanied by a presumption of correctness and the appealing

party carries the burden of showing that the sentence is improper. Tenn. Code Ann.

§40-35-401 Sentencing Commission Comments. The presumption, however, is

conditioned upon an 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). Because the trial court in this case carefully

considered the relevant principles of sentencing, we afford its decision the

presumption of correctness.

        Initially, we note that although the appellant was eligible for an alternative

sentence, he was not entitled to the presumption in favor of alternative sentencing

because he was convicted of a Class B felony. Tenn. Code Ann. §40-35-102(6)

(Supp. 1995); Tenn. Code Ann. §39-13-213(b) (Supp. 1995). However, as the



        3
           Appellant was indicted on two counts alleging alternative theories of vehicular homicide: (1) as
the result of conduct creating a substantial risk of death or serious bodily injury to a person; and (2) as
the resu lt of the driver’s intoxication . See Tenn. Code A nn. §39-13-213 (Supp . 1995).

                                                     3
recipient of an eight (8) year sentence, appellant was statutorily eligible for probation.

Tenn. Code Ann. §40-35-303 (Supp. 1995). While the trial court was required to

automatically consider appellant for an alternative sentence, including probation,

appellant bore the burden of establishing both his suitability and that an alternative to

incarceration would “subserve the ends of justice and the best interest of both the

public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App.

1990) (quoting Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956)); State v. Bradley

Joe Housewright, No. 03C01-9705-CR-00195 (Tenn. Crim. App. at Knoxville,

December 16, 1997), perm. app. filed (Tenn. Feb. 16, 1998). The trial court found

that appellant failed to carry that burden. State v. Boston, 938 S.W.2d 435, 438

(Tenn. Crim. App. 1996).

       In denying alternative sentencing, the trial court determined that confinement

was necessary in order to avoid depreciating the serious nature of the offense and

that measures less restrictive than confinement had been applied unsuccessfully to

appellant in the past. See Tenn. Code Ann. §40-35-103(1)(B), (C) (1990). The trial

court’s conclusion in that regard is supported by the factual record before us.

       In order to deny probation based upon the nature of the offense, the

circumstances of the offense must be especially violent, shocking, reprehensible,

offensive, or of an exaggerated degree so as to outweigh all other factors favoring an

alternative sentence. State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App.

1995) (citations omitted). In this case, appellant took the wheel of his automobile to

drive home a disabled friend who trusted him for transportation. W hile knowingly

intoxicated, appellant sped out of the parking lot of the dance bar and refused to yield

to pursuing police officers for six miles. After the horrific crash, appellant attempted to

flee the scene, demonstrating a callous indifference for his injured friend. Those

circumstances weigh heavily against any factors that favor an alternative sentence.

       Next, as determined by the trial court, measures less restrictive than

confinement have been applied unsuccessfully to the appellant. Tenn. Code Ann.

                                             4
§40-35-103(1)(C) (1990). In 1984, appellant began serving a three (3) year

probationary sentence for a conviction of larceny. He was later sentenced to an

additional four (4) months after he failed to report to his probation officer. In addition,

appellant testified that he was convicted of D.U.I. in 1986. The commission of the

instant offense indicates that he was not rehabilitated following his previous

convictions. Tenn. Code Ann. § 40-35-103(5) (1990).

       Furthermore, we note that the appellant was released on bond after his arrest

in the present case and he subsequently went to Arizona. Following the indictments

on vehicular homicide, he agreed to submit to Tennessee authorities, but failed to

report on the scheduled date. Over one month passed before he was finally arrested

at his home in Tucson, Arizona, and an additional ten (10) days passed before he

agreed to waive extradition.4 The trial court found that such conduct was indicative of

appellant’s poor potential for success if placed on probation. We agree.

       Although appellant expressed remorse, has a positive employment history, and

does not have a lengthy criminal record, he has nevertheless failed to carry his burden

of demonstrating suitability for an alternative sentence. Accordingly, we affirm the

judgment of the trial court ordering appellant to serve his eight (8) year sentence in the

Department of Correction.


                                                                   _______________________________
                                                                   William M. Barker, Judge


CONCUR:


____________________________
Joseph M. Tipton, Judge


____________________________
Curwood Witt, Judge



       4
           The reco rd als o sho ws th at ap pellan t has a hist ory of failing to ap pea r for c ourt d ates in
Arizona.

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