        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  May 17, 2011 Session

           STATE OF TENNESSEE v. JUSTIN KENNETH BOLDUS

                 Appeal from the Circuit Court for Dickson County
                 No. 22CC-2009-CR-708      Larry J. Wallace, Judge


                No. M2011-00036-CCA-R3-CD - Filed August 11, 2011

The defendant, Justin Kenneth Boldus, pleaded guilty in Dickson County Circuit Court to
one count of vehicular homicide by recklessness, see T.C.A. § 39-13-213(a)(1) (2006), and
one count of leaving the scene of an accident involving death, see id. § 55-10-101. The trial
court imposed consecutive sentences of four years and one year to be served in the
Department of Correction. On appeal, the defendant argues that the trial court erred by
imposing consecutive sentences and by denying alternative sentencing. Discerning no error,
we affirm the judgments of the trial court.

            Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J.C. M CL IN, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Justin Kenneth Boldus.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Kelly Jackson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On September 26, 2009, Tennessee State Troopers responded to the scene of
a single-car accident on Highway 48 in Dickson County. As they approached the scene, they
found the then-nineteen-year-old defendant walking down the highway away from the
accident. When questioned, the defendant said that he needed to talk to his parents and fled
to a nearby wooded area where he was apprehended a short time later. At the scene, officers
discovered the victim, Michael B. Hugel, dead from injuries sustained in the collision. Blood
alcohol testing performed on the defendant revealed a blood alcohol content of .11 percent.
Likewise, a toxicology screening of the victim’s blood revealed a blood alcohol content of
.04 percent and that the victim had smoked marijuana sometime that night.

              On December 7, 2009, a Dickson County grand jury indicted the defendant on
one count of vehicular homicide by intoxication and on one count of leaving the scene of an
accident involving death. On May 20, 2010, the defendant pleaded guilty to an amended
charge, in count one, of vehicular homicide by recklessness and, in count two, to leaving the
scene of an accident involving death. Following his guilty pleas, the trial court allowed the
defendant to remain on bond pending the sentencing hearing which it scheduled for
September 15, 2010.

              At the sentencing hearing, the State presented victim impact testimony from
the victim’s grandmother and sister. Both witnesses told of the great loss suffered by their
family by the victim’s death. Neither witness could understand how the defendant could
walk away from the accident without trying to assist the victim. The victim’s sister, Tabatha
Derry, told the defendant that she had forgiven him but said that no one should be “killed
over foolishness” such as the underage drinking and driving undertaken by the defendant.

               The defendant’s father, Keith Boldus, testified that the defendant had worked
with him for over two years at Midas in Nashville and would have continued employment
if granted alternative sentencing.1 Mr. Boldus said that everyone had suffered a loss with the
victim’s death because the victim was also a close friend to his family. He stated that his son
was “definitely” remorseful and that he had “followed the rules” since the accident.

              The defendant testified that he wanted to “reach out” to the victim’s family but
was advised not to do so by counsel. He said that he was “truly sorry” and missed the victim
every day. Regarding why he walked away from the accident scene, the defendant explained
that he was thrown from the car and could not remember what had happened when he woke
up on the ground. He recalled screaming the victim’s name and shaking his leg. The
defendant said that when the victim did not respond, the defendant “freaked out” and started
“running from what [he had] just [done].” The defendant testified that he had not consumed
any alcohol since the accident.

             The trial court questioned the defendant about his assertion that he had not
consumed alcohol since the accident because the defendant told his probation officer that he
had last consumed alcohol on his twentieth birthday just weeks after the accident. The
defendant could not explain how that statement came to be included in the presentence
report. Upon questioning about his prior criminal history, the defendant explained that he


       1
          The presentence report indicated that the defendant had worked steadily and consistently since
attaining working age.

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was convicted of driving without a license once when he left his wallet at home and that he
also had been cited for failing to wear his seatbelt.

              The defendant said that he “felt bullet proof” before the accident and admitted
to drinking and driving on previous occasions. He said that he had “changed a hundred
percent,” was ready “to step up,” and was “not wild anymore.” Testimony at the sentencing
hearing and evidence in the presentence report also showed that the defendant was financially
supporting his infant daughter, working over 50 hours per week, and had successfully
complied with all conditions of his release while on bond pending sentencing. Included in
his bond conditions was the defendant’s wearing a “SCRAM” bracelet which documented
that the defendant had not consumed alcohol since its placement in December 2009.

               The trial court imposed sentences of four years and one year for the vehicular
homicide and leaving the scene of an accident convictions, respectively. The trial court
further concluded that the defendant was a dangerous offender qualifying for consecutive
sentencing and ordered the sentences to be served consecutively for a total effective sentence
of five years. Concerning the defendant’s request for alternative sentencing, the trial court
considered the defendant’s criminal history and continued criminal behavior as shown by his
admitted underage consumption of alcohol and previous incidents of drinking and driving.
Based upon these considerations, the trial court found that the defendant was “not suitable
for probation” and denied all forms of alternative sentencing.

                When considering challenges to the length and manner of service of a sentence
this court conducts a de novo review with a presumption that the determinations of the trial
court are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are
adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.


              In making its sentencing decision, the trial court must consider:



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               (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 §§ 40-35-113 and
               40-35-114;

               (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 wishes to make in the
               defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).


                Initially, the State asks that we presume that the trial court’s ruling is correct
in light of the defendant’s failure to include a transcript of the guilty plea submission hearing
in the record on appeal. In the absence of the transcript, the State argues that we are
precluded from conducting our de novo review of the sentence. See T.C.A. § 40-35-210(b).
Although it is true that this court has determined that when a trial court approves a
defendant’s guilty plea and then imposes a sentence that is challenged on appeal, the
appellate court may need the transcript of the plea submission hearing as a means of knowing
the nature and circumstances of the offense, see, e.g., State v. Keith Lemont Farmer, No.
M2006-00707-CCA-R3-CD (Tenn. Crim. App., Nashville, Mar. 28, 2007), the need for
information about the nature and circumstances of the offense does not equate to a per se
requirement that the plea submission hearing transcript be included in the record as a
condition precedent to appellate review. We further note that on May 31, 2011, after the case

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was heard at oral argument, this court granted the defendant’s motion to supplement the
record with a transcript of the plea submission hearing. On June 14, 2011, the defendant
supplemented the record with the transcript of the hearing. Our review of the plea
submission hearing, however, reveals that there was no stipulation of proof offered at the
hearing that would lend any additional insight into the nature and circumstances of the
convicted offenses. Furthermore, we are able to determine the nature and circumstances of
the offense via the presentence report, which we conclude affords this court an adequate
basis for reviewing the defendant’s sentence.


               Turning first to the defendant’s argument that the trial court erred by imposing
consecutive sentences, Tennessee Code Annotated section 40-35-115 provides that when a
defendant is convicted of multiple crimes, the trial court, in its discretion, may order the
sentences to run consecutively if it finds by a preponderance of the evidence that a defendant
falls into one of seven categories listed in Code section 40-35-115(b). They are:


              (1) The defendant is a professional criminal who has knowingly
              devoted the defendant’s life to criminal acts as a major source
              of livelihood;


              (2) The defendant is an offender whose record of criminal
              activity is extensive;


              (3) The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a result
              of an investigation prior to sentencing that the defendant’s
              criminal conduct has been characterized by a pattern of
              repetitive or compulsive behavior with heedless indifference to
              consequences;


              (4) The defendant is a dangerous offender whose behavior
              indicates little or no regard for human life, and no hesitation
              about committing a crime in which the risk to human life is
              high;


              (5) The defendant is convicted of two (2) or more statutory
              offenses involving sexual abuse of a minor with consideration

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              of the aggravating circumstances arising from the relationship
              between the defendant and victim or victims, the time span of
              defendant’s undetected sexual activity, the nature and scope of
              the sexual acts and the extent of the residual, physical and
              mental damage to the victim or victims;


              (6) The defendant is sentenced for an offense committed while
              on probation; or


              (7) The defendant is sentenced for criminal contempt.


T.C.A. § 40-35-115(b) (2006). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the
supreme court imposed two additional requirements for consecutive sentencing when the
“dangerous offender” category, see T.C.A. § 40-35-115(b)(4), is used; the court must find
consecutive sentences are reasonably related to the severity of the offenses committed and
are necessary to protect the public from further criminal conduct. Wilkerson, 905 S.W.2d at
937-39; see State v. Imfeld, 70 S.W.3d 698, 707-08 (Tenn. 2002).


               Initially, we note that the trial court gave appropriate consideration to the
principles of sentencing in making its determination and, specific to the application of the
dangerous offender factor, made the requisite Wilkerson findings. In ruling the defendant
a dangerous offender, the trial court found that the defendant drove at a high rate of speed
while “excessive[ly] intoxicated” with passengers in his car. The record showed that the
defendant was traveling approximately 78 miles per hour in a 55 miles per hour zone and that
his blood alcohol level was over five times the legal limit of a driver his age. See T.C.A. §
55-10-415(a)(1)(A) (providing that an underage driver may not operate a motor vehicle when
his or her blood alcohol level exceeds .02 percent). The presentence report also reveals that
the defendant’s brother and the victim were in the car. In preparation of the presentence
report, the defendant admitted to consuming alcohol illegally on his birthday, just weeks after
the fatal accident. Significantly, for purposes of applying the dangerous offender factor, the
defendant also admitted at the sentencing hearing that he had driven while drinking on
previous occasions without getting “caught.” The trial court characterized the defendant’s
previous driving history of traffic violations and one accident involving property damage as
behavior that “continued to lead up” to the present offenses. The record supports these
findings and the imposition of consecutive sentences in this case. See, e.g., State v. Harvey
Philip Hester, No. 03C01-9704-CR-00144 (Tenn. Crim. App., Knoxville, Mar. 22, 2000)
(stating defendant’s escalating pattern of criminal behavior justified consecutive sentencing


                                              -6-
based upon dangerous offender finding).

               Next, turning to the defendant’s allegation that the trial court erred by denying
alternative sentencing, it is true that as the recipient of a sentence of ten years or less, the
defendant was eligible for probation. See T.C.A. § 40-35-303(a). The defendant bore the
burden, however, of establishing his “suitability for full probation.” State v. Mounger, 7
S.W.3d 70, 78 (Tenn. Crim. App. 1999); see T.C.A. § 40-35-303(b). Among the factors
applicable to probation consideration are the circumstances of the offense; the defendant’s
criminal record, social history, and present condition; the deterrent effect upon the defendant;
and the best interests of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978).

               At multiple times throughout the trial court’s sentencing determination, the
court voiced concern that the defendant was “not learning his lesson” or had “never really
had to suffer any consequences for his actions” because he had engaged in an escalating
pattern of dangerous driving behavior, had continued to consume alcohol although underage,
and had admitted to drinking and driving on previous occasions. The trial court questioned
the genuineness of the defendant’s remorse and opined that the defendant was only
remorseful out of concern for his punishment. Based upon these considerations, the trial
court ruled the defendant “not suitable for probation” and denied all forms of alternative
sentencing. We agree that the defendant’s continued use of alcohol while underage and the
pattern of escalating behavior culminating in this offense indicative in his criminal history
casts doubt on the defendant’s potential for rehabilitation. See, e.g., State v. Elizabeth Martin
Patrick Scalf, No. E2008-01150-CCA-R3-CD (Tenn. Crim. App., Knoxville, July 9, 2009),
perm. app. denied (Tenn. Dec. 12, 2009) (holding that defendant’s history of driving offenses
culminating in vehicular homicide warranted denial of alternative sentencing). Accordingly,
we affirm the trial court’s denial of alternative sentencing.


                                          Conclusion


             Discerning no error in the trial court’s sentencing determination, we affirm the
judgments of the trial court.




                                            _________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE



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