          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE        FILED
                           MARCH 1997 SESSION
                                                     May 21, 1997

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9606-CR-00249
      Appellee,                    )
                                   )    WILSON COUNTY
VS.                                )
                                   )    Hon. J.O. Bond, Judge
PENELOPE R. KARNES,                )
                                   )    (Vehicular Assault - Sentencing)
      Appellant.                   )



FOR THE APPELLANT:                      FOR THE APPELLEE:

COMER L. DONNELL                        CHARLES W. BURSON
District Public Defender                Attorney General and Reporter

KAREN G. CHAFFIN                        M. ALLISON THOMPSON
Assistant Public Defender               Assistant Attorney General
213 North Cumberland Street             450 James Robertson Parkway
P.O. Box 888                            Nashville, TN 37243-0493
Lebanon, TN 37087
                                        TOM P. THOMPSON, JR.
                                        District Attorney General

                                        DOUG HALL
                                        Assistant District Attorney General
                                        111 Cherry Street
                                        Lebanon, TN 37087



OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The appellant, Penelope R. Karnes, appeals the sentences imposed by the

Criminal Court of Wilson County following her guilty plea to two (2) counts of

vehicular assault. The trial court ordered her to serve four (4) years on each count

in the Tennessee Department of Correction to be served consecutively. On appeal,

Karnes claims that the trial court erred by: (1) imposing excessive sentences; (2)

denying probation; and (3) ordering that the sentences be served consecutively.

We affirm the judgment of the trial court.



                                      FACTS



       In March 1994, Karnes was driving her vehicle in the wrong lane on Highway

109 in Wilson County, Tennessee. Her car collided with a car driven by James

McDermott, causing serious injuries to McDermott and his passenger, Bruce

Silverman. Karnes admitted to the officer responding to the accident that she had

been drinking. Subsequent blood tests revealed that Karnes’ blood alcohol level

was .26.

       Karnes was indicted on two (2) counts of aggravated assault, third offense

driving under the influence of an intoxicant, driving on a revoked license, violation

of registration law, and driving on the wrong side of a roadway. She pled guilty to

two (2) counts of the amended charge of vehicular assault, and the state entered

nolle prosequi orders on the remaining counts of the indictment.

       After a sentencing hearing, Karnes was sentenced as a Range I, Standard

Offender to four (4) years on each count of vehicular assault. The trial court

ordered that the sentences were to be served consecutively. Furthermore, the trial

court denied any form of sentencing alternative.




                           REVIEW OF SENTENCING


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      This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the

appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-

401(d) Sentencing Commission Comments. In conducting our review, we are

required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following

factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in [her] own behalf about sentencing.

       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and the trial

court’s findings of fact are adequately supported by the record, then we may not

modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



                            EXCESSIVE SENTENCES



      Karnes contends that the trial court erred in imposing the maximum sentence

of four (4) years for each count of vehicular assault, a Class D felony. She claims

that the trial court was not justified in relying upon her past criminal convictions

because those convictions were merely for misdemeanor driving offenses.

Therefore, she argues that the sentence imposed was not the “least severe

measure necessary to achieve the purposes for which the sentence is imposed.”

See Tenn. Code Ann. § 40-35-103(4).



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       If no mitigating or enhancing factors for sentencing are present, Tenn. Code

Ann. § 40-35-210(c) provides that the presumptive sentence shall be the minimum

sentence within the applicable range. See State v. Fletcher, 805 S.W.2d at 788.

However, if such factors do exist, a trial court should start at the minimum sentence,

enhance the minimum sentence within the range for aggravating factors and then

reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.

§ 40-35-210(e). No particular weight for each factor is prescribed by the statute, as

the weight given to each factor is left to the discretion of the trial court as long as its

findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn.

1986); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995); see Tenn.

Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless, should

there be no mitigating factors, but enhancement factors are present, a trial court

may set the sentence above the minimum within the range. Tenn. Code Ann. § 40-

35-210(d); see Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

       After the sentencing hearing, the trial court found that five enhancement

factors applied in this case: (1) Karnes had a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate

range; (2) the offense involved more than one victim; (3) the personal injuries

inflicted upon the victims were particularly great; (4) Karnes had a previous history

of unwillingness to comply with the conditions of a sentence involving release in the

community; and (5) she had no hesitation about committing a crime when the risk

to human life was high. See Tenn. Code Ann. § 40-35-114(1), (3), (6), (8) and (10).

The trial court found that no mitigating factors applied.

       The trial court properly applied enhancement factor (1) in this case. Karnes

has two prior DUI convictions plus a prior conviction for driving on a revoked license.

Although these are misdemeanor convictions, the statute does not require the prior

convictions to be felonies. Tenn. Code Ann. § 40-35-114(1). Furthermore, Karnes

testified that she had continued to drive since 1990 even though she did not have

a license, evidencing previous criminal behavior.

       The trial court found that Karnes had no hesitation about committing a crime



                                            4
when the risk to human life was high.         Tenn. Code Ann. § 40-35-114(10).

Enhancement factor (10) may be applied in instances where individuals other than

the victim are in the area of the defendant’s criminal conduct and are subject to

injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995); see also State

v. Bingham, 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995). However, this factor is

inapplicable where the only risk to human life is the risk to the victim. See State v.

Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993).

       The testimony at the sentencing hearing and the pre-sentence report showed

that Karnes was driving in the wrong lane on a highway in Wilson County with a

blood alcohol content of .26. There is no direct evidence in the record that she

endangered the lives of others aside from the victims. The trial court erroneously

applied this enhancement factor.

       The trial court misapplied the enhancement factor that the offense involved

more than one victim. Tenn. Code Ann. § 40-35-114(3). This enhancement factor

may not be applied when the appellant is separately convicted of the offense

committed against each victim. State v. Williamson, 919 S.W.2d 69, 82 (Tenn.

Crim. App. 1995); State v. Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995);

State v. McKnight, 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994).

       The trial court found that Tenn. Code Ann. § 40-35-114(6) was an

appropriate enhancement factor. However, in State v. Jones, 883 S.W.2d 597, 602

(Tenn. 1994), the Tennessee Supreme Court held that “proof of serious bodily injury

will always constitute proof of particularly great injury.” Therefore, because serious

bodily injury is an element of vehicular assault, particularly great injuries to the

victims is not an appropriate enhancement factor. State v. Rhodes, 917 S.W.2d

708, 714 (Tenn. Crim. App. 1995); see also State v. Williamson, 919 S.W.2d at 82-

83; State v. Crowe, 914 S.W.2d 933, 940 (Tenn. Crim. App. 1995).

       The trial court further found that Karnes has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the

community. Tenn. Code Ann. § 40-35-114(8). Although Karnes admitted to driving

after her license was revoked, it is unclear whether she drove on a revoked license



                                          5
while on probation. This enhancement factor was erroneously applied.

       Although the trial court erroneously applied some enhancement factors,

Karnes is not automatically entitled to a reduction in her sentences. State v. Keel,

882 S.W.2d 410, 423 (Tenn. Crim. App. 1994). It is evident from the record that the

trial court placed great weight on Karnes’ prior convictions and prior criminal

behavior. Indeed, her prior convictions resulted from the same criminal conduct that

caused her to commit the present offenses; namely, driving under the influence of

an intoxicant. Therefore, we find that the four-year sentences imposed are not

excessive.



                             DENIAL OF PROBATION



       Karnes contends that the trial judge abused his discretion in denying

probation. She argues that she is presumably entitled to probation and the state did

not attempt to overcome the statutory presumption. As a result, she claims that the

trial court committed reversible error.

       An especially mitigated or standard offender convicted of a Class C, D or E

felony is presumed to be a favorable candidate for alternative sentencing in the

absence of evidence to the contrary.          Tenn. Code Ann. § 40-35-102(6).       A

defendant is eligible for probation if the sentence received by the defendant is eight

years or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-

303(a).

       A trial court must presume that a defendant sentenced to eight years or less

and who is not an offender for whom incarceration is a priority is subject to

alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App.

1993). It is further presumed that a sentence other than incarceration would result

in successful rehabilitation unless rebutted by sufficient evidence in the record. Id.

at 380. However, although a defendant may be presumed to be a favorable

candidate for alternative sentencing, the defendant has the burden of establishing

suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.



                                          6
App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must be

automatically considered, “the defendant is not automatically entitled to probation

as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission

Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991).

       In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant's criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286

(Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).              In determining if

incarceration is appropriate, a trial court may consider the need to protect society

by restraining a defendant having a long history of criminal conduct, the need to

avoid depreciating the seriousness of the offense, whether confinement is

particularly appropriate to effectively deter others likely to commit similar offenses,

and whether less restrictive measures have often or recently been unsuccessfully

applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v.

Ashby, 823 S.W.2d at 169.

       There is no mathematical equation to be utilized in determining sentencing

alternatives. Not only should the sentence fit the offense, but it should fit the

offender as well. Tenn. Code Ann. § 40-35-103(2); State v. Boggs, 932 S.W.2d at

477. Indeed, individualized punishment is the essence of alternative sentencing.

State v. Dowdy, 894 S.W .2d 301, 305 (Tenn. Crim. App. 1994). In summary,

sentencing must be determined on a case-by-case basis, tailoring each sentence

to that particular defendant based upon the facts of that case and the

circumstances of that defendant. State v. Moss, 727 S.W.2d at 235.

       At the sentencing hearing, the trial court focused on Karnes’ past criminal

behavior. The trial judge noted that Karnes had been convicted of DUI on two

previous occasions, and she continued to drink and drive. Karnes conceded that

she had been admitted to a thirty day treatment facility for her alcoholism, but that

she “would slip back.” Even though she has been diagnosed as a chronic alcoholic,



                                          7
she testified that she is still drinking.

       For her previous DUI convictions, Karnes received minimal time in jail, with

the balance of her sentences to be served on probation.             Apparently, these

measures were unsuccessful. Furthermore, she has shown a lack of potential for

rehabilitation in light of the fact that she is still drinking. No doubt her destructive

behavior would have continued had it not culminated in this accident which seriously

injured two people. Accordingly, we find that the trial court was within its discretion

in denying probation.



                            CONSECUTIVE SENTENCING



       Finally, Karnes insists that the trial court was in error in imposing consecutive

sentences.      She argues that the trial court could not have found by a

preponderance of the evidence that the consecutive sentencing criteria have been

met. See Tenn. Code Ann. § 40-35-115(b). She also suggests that the trial court

erred in considering the same factors to enhance her sentence as well as to support

consecutive sentencing. Therefore, she maintains that her sentences should run

concurrently.

       Initially, we must note that this Court has previously held that there is nothing

in the 1989 Sentencing Act which would prohibit consideration of the same facts

and circumstances both to enhance sentences and to require those sentences to

be served consecutively. State v. Melvin, 913 S.W.2d 195, 205 (Tenn. Crim. App.

1995); State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993).

       A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that “[t]he 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.” Tenn. Code Ann. § 40-

35-115(b)(4). The trial court specifically found that Karnes was a dangerous

offender whose behavior indicates little or no regard for human life. The record

supports that finding, especially considering her history of driving while under the



                                            8
influence of an intoxicant.

       Furthermore, the court is required to determine whether the consecutive

sentences (1) are reasonably related to the severity of the offenses committed; (2)

serve to protect the public from further criminal conduct by the offender; and (3) are

congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d

933, 939 (Tenn. 1995).

       In this case, Karnes severely injured two people after having been convicted

of driving under the influence on two previous occasions. There is no indication in

the record that Karnes intends to stop drinking. Although she claims that she does

not want to drive again, she is physically able to do so. Additionally, two DUI

convictions did not deter her from drinking and driving. Even after prior involvement

with the criminal justice system, she continued to disregard our laws and severely

injured two innocent victims as well as herself. As a result, we conclude that

consecutive sentences are reasonably related to the severity of these offenses and

serve to protect the public from further criminal conduct.



                                   CONCLUSION



       In conclusion, Karnes has not shown that the sentences she received are

improper.    As a multiple DUI offender who has shown little potential for

rehabilitation, she unfortunately is a danger to the public. The trial court was

warranted in imposing four (4) year consecutive sentences for two counts of

vehicular assault.

       The judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE




CONCUR:

                                          9
JOSEPH M. TIPTON, JUDGE




THOMAS T. WOODALL, JUDGE




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