         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 16, 2004

                    STATE OF TENNESSEE v. JULIUS E. SMITH

                     Appeal from the Criminal Court for Hamilton County
                        Nos. 239667, 239832    Rebecca Stern, Judge



                       No. E2003-01059-CCA-R3-CD - Filed July 19, 2004


The defendant, Julius E. Smith, entered pleas of guilty to two counts of driving under the influence,
third offense, and four counts of vehicular assault. As to the first driving under the influence offense,
the trial court imposed a sentence of eleven months and twenty-nine days, to be suspended to
probation after the service of 120 days of confinement. The second was merged into the convictions
for vehicular assault. The trial court imposed consecutive sentences of three years for each vehicular
assault conviction. The sentences were ordered to be served consecutively to the sentence for driving
under the influence, third offense. The effective sentence is, therefore, twelve years, eleven months,
and twenty-nine days. In this appeal, the defendant asserts that the effective sentence for the
vehicular assault convictions is excessive. It is our judgment that the misapplication of an
enhancement factor to three of the four vehicular assault convictions warrants a reduction to two
years for each of those crimes. Otherwise, the judgments of the trial court, including the imposition
of consecutive terms, are affirmed.

           Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed as Modified

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.

Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public
Defender, for the appellant, Julius E. Smith.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and
Parke Masterson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       On February 12, 2003, the defendant entered a guilty plea in case number 239832 to driving
under the influence, third offense. See Tenn. Code Ann. §§ 55-10-401, -403. Pursuant to a plea
agreement, the defendant received an agreed sentence of eleven months and twenty-nine days, to be
suspended to probation after service of one hundred twenty days of confinement in jail. The
stipulated facts, as stated at the submission of the guilty plea, are as follows:

       [O]n the 28th of February, 2001, the defendant was operating a motor vehicle that
       rear-ended a car that was stopped at a light. That car in turn also ran into the car in
       front of it. There was damage to both of those cars but there were not serious bodily
       injuries in that case. The defendant was found under the influence of alcohol by the
       police officer, Officer Watkins, and did refuse to take a test in that case.

        As to the other charges, the defendant entered pleas of guilty to one count of third offense
driving under the influence and four counts of vehicular assault. See Tenn. Code Ann. § 39-13-106.
The sentence was left to the discretion of the trial court. The stipulated facts of that case were
described by the state at the submission hearing:

       [T]hat case . . . occurred on the 19th of September of 2001. The defendant . . . was
       operating a vehicle on that day. He was traveling down the 300 block of Bonny Oaks
       Drive, driving in and out of traffic. The defendant was very intoxicated at this time.
       [The defendant] had an accident when he entered into the path of another vehicle in
       that line of traffic at that time. As a result there were serious bodily injuries to Nicole
       Baxter, Rachel Baxter, Heather White, and Rebecca White.

               In that case he was tested by a blood test and had a BAC of .23.

As a part of the plea agreement, the sentence for driving under the influence, third offense, was to
be served consecutively to the sentence imposed for the vehicular assault convictions because the
defendant was on bail for the first charges when the second accident occurred.

        At the sentencing hearing, Rachel Baxter, one of the victims of vehicular assault, testified
that her car, which was valued at $2500, was a total loss. Mark Kimsey, a traffic investigator for the
Hamilton County Sheriff's Department, testified that the rate of alcohol-related traffic fatalities was
on the rise in Hamilton County and that in 2001, thirty-nine percent of traffic fatalities in Hamilton
County were alcohol related. According to Kimsey, that rate was higher than the national average,
which had decreased.

        The forty-one-year-old defendant, testifying on his own behalf, admitted that he had a
drinking problem and proposed to seek rehabilitation and make restitution if granted probation. He
also claimed that depression occasioned by deaths within his family had contributed to his problems
with alcohol and asserted that, before being arrested, he had owned a successful concrete finishing
company. The defendant expressed concern for the victims of his second accident and testified that
he used his cell phone to call an ambulance. He acknowledged, however, that he had not sought
rehabilitation for his alcohol dependency after either of the accidents and conceded that he continued
to use alcohol until he was incarcerated in September of 2002.



                                                  -2-
        Bruce Smith, the defendant's brother, testified that the defendant had been deeply affected
by the death of his mother and another brother, which had occurred within a short period of time
before the accident. While acknowledging that the defendant had experienced a decline in his
business, it was Smith's opinion that the defendant, if granted probation, could easily reestablish a
successful enterprise. Smith conceded that the defendant had made no effort at rehabilitation since
the accident.

        In addition to the eleven-month-twenty-nine-day sentence, the trial court imposed sentences
of three years on each of the four counts of vehicular assault and ordered consecutive service on
each. The trial court also denied alternative sentencing, concluding that confinement was "necessary
to avoid depreciating the seriousness of the offense" and that "measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant." See Tenn.
Code Ann. § 40-35-103(1)(B), (C). It also determined that the defendant's behavior indicated "a lack
of potential for rehabilitation and treatment." See Tenn. Code Ann. § 40-35-103(5).

                                                     I
         In this appeal, the defendant asserts that the trial court misapplied one enhancement factor
and that it erred by ordering consecutive sentencing. When there is a challenge to the length, range,
or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d). This presumption 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994).
"If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act,
the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992). The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

        Vehicular assault, a Class D felony, carries a range of punishment of between two and four
years for a Range I offender. See Tenn. Code Ann. § 40-35-112(a)(4). In calculating the sentence
for a Class D felony conviction, the presumptive sentence is the minimum in the range if there are
no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are enhancement
but no mitigating factors, the trial court may set the sentence above the minimum, but still within
the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating
factors requires an assignment of relative weight for the enhancement factors as a means of



                                                   -3-
increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The sentence must then be reduced
within the range by any weight assigned to the mitigating factors present. Id.

        In arriving at a mid-range sentence of three years on each count, the trial court applied
enhancement factors (2), the defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range, and (7), the amount of
damage to property sustained by the victim was particularly great. See Tenn. Code Ann. § 40-35-
114(2), (7) (2003). In mitigation, the trial court concluded that the defendant had a good
employment history and good family support but determined that those factors were not sufficient
to lessen the three-year sentences.

         The defendant asserts that the trial court erred by applying enhancement factor (7), that the
amount of damage to property sustained by the victim was particularly great. The state concedes that
the trial court should not have applied this factor to the convictions pertaining to the passengers in
the car but asserts that it was applicable to the conviction relating to the driver, who owned the car.
This court has previously held that enhancement factor (7) is applicable when, as in this case, a
vehicular assault victim's car was totaled. See, e.g., State v. John D. Neblett, No.
01C01-9805-CC-00231 (Tenn. Crim. App., at Nashville, Sept. 24, 1999); State v. George Blake
Kelly, No. 01C01-9610-CC-0048 (Tenn. Crim. App., at Nashville, Oct.13, 1998). In consequence,
factor (7) would be applicable to the conviction for vehicular assault of Rachel Baxter, whose car
was destroyed in the accident. None of the passengers, however, suffered "particularly great"
property damage. In fact, the only property damage listed by any of the remaining victims was
approximated at $100 in clothing and jewelry. Thus, the trial court erred by applying enhancement
factor (7) to the remaining convictions. In our view, a modification of the three-year sentence
imposed for the vehicular assault upon Rachel Baxter is not warranted under our sentencing act. The
nature and circumstances of that offense coupled with the defendant's previous history of alcohol-
related offenses warrant the mid-range sentence. As to the remaining vehicular assault convictions,
the misapplication of an enhancement factor, particularly in light of the mitigating factors identified
by the trial court as having minimal weight, would require a modification of the sentences to two
years on each count.

        The United States Supreme Court's recent opinion in Blakely v. Washington, 542 U.S. ___,
2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing
scheme. In that case, the Court, applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490
(2000), struck down a provision of the Washington sentencing guidelines that permitted a trial judge
to impose an "exceptional sentence" upon the finding of certain statutorily enumerated enhancement
factors. Id. The Court observed that "the 'statutory maximum' for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant." Id., at **13-14 (emphasis in original). Finally, the Court concluded
that "every defendant has a right to insist that the prosecutor prove to a jury [beyond a reasonable
doubt] all facts legally essential to the punishment." Id., at *31 (emphasis in original).




                                                 -4-
        In any event, the application of Tennessee Code Annotated section 40-35-114(2) would not
violate the rule established in Apprendi because it is based, in this case, upon prior criminal
convictions. See Apprendi, 566 U.S. at 490. The defendant has seven prior convictions, the
applicability of which was not at issue. That factor would apply to all four convictions. During the
submission hearing, the defendant conceded that he caused the damage to Rachel Baxter's vehicle.
See Tenn. Code Ann. § 40-35-114(7) (2003). Because that fact was a part of the guilty plea, it would
apply to the vehicular assault of Rachel Baxter. By use of the ruling in Blakely, it is our view that
a modification to two years on three of the vehicular assault convictions would be appropriate. In
our view, the three-year sentence as to the vehicular assault of Rachel Baxter was properly imposed.

                                                    II
        The defendant next asserts that the trial court erred by ordering consecutive sentencing. Prior
to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the
imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn.
1976). In that case, our supreme court ruled that aggravating circumstances must be present before
placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987),
our high court established an additional category for those defendants convicted of two or more
statutory offenses involving sexual abuse of minors. There were, however, additional words of
caution:

         [C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate
         maximum of consecutive terms must be reasonably related to the severity of the
         offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary
language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in
essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed
in the discretion of the trial court only upon a determination that one or more of the following
criteria1 exist:

         (1) The defendant is a professional criminal who has knowingly devoted himself 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;




         1
          The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Commission Comments.

                                                          -5-
       (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 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.

Tenn. Code Ann. § 40-35-115(b).

        The length of the sentence, when consecutive in nature, must be “justly deserved in relation
to the seriousness of the offense,” Tenn. Code Ann. § 40-35-102(1), and “no greater than that
deserved” under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).

       The trial court ordered consecutive sentences on the following grounds:

       I do find by a preponderance of the evidence . . . "the defendant is an offender whose
       record of criminal activity is extensive."
               I do find 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 of life is high."

         In Gray, our supreme court ruled that before consecutive sentencing could be imposed upon
the dangerous offender, considered the most subjective of the classifications and the most difficult
to apply, other conditions must be present: (a) that the crimes involved aggravating circumstances;
(b) that consecutive sentences are a necessary means to protect the public from the defendant; and
(c) that the term reasonably relates to the severity of the offenses. In State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding that consecutive sentences
cannot be required of the dangerous offender "unless the terms reasonably relate[] to the severity of
the offenses committed and are necessary in order to protect the public (society) from further
criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision,
which modified somewhat the strict factual guidelines for consecutive sentencing adopted in State
v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process
that neither can nor should be reduced to a set of fixed and mechanical rules." 905 S.W.2d at 938.

        Although the trial court determined that the defendant's extensive criminal history warranted
consecutive sentencing, the record does not support this finding. While the defendant has seven
prior convictions over a period of years, all are misdemeanors and none involve violence. See State
v. Travis Parson, No. W2002-02743-CCA-R3-CD (Tenn. Crim. App., at Jackson, Sept. 9, 2003).


                                                 -6-
Moreover, there was no proof of any criminal activity other than the misdemeanor convictions. See
State v. James F. Massengale, No. E2000-00774-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Oct.
21, 2002) (record supported finding of extensive criminal activity where defendant admitted that he
had stolen as many as one hundred fifty cars per year). Other cases where consecutive sentences
were properly based upon an extensive criminal record have required substantially more in
comparison to this case. See, e.g., State v. Spike Hedgecoth, No. E2002-01869-CCA-R3-CD (Tenn.
Crim. App., at Knoxville, Nov. 12, 2003); State v. Allen Prentice Blye, No.
E2001-01375-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 1, 2002). It is our view that the
defendant's record of criminal activity is insufficient to support consecutive sentencing under
Tennessee Code Annotated section 40-35-115(b)(2).

        In determining that the defendant qualified as a dangerous offender, the trial court failed to
specifically find that an extended sentence reasonably related to the severity of the offenses and was
necessary to protect the public against further criminal conduct by the defendant. Ordinarily, a
remand to the trial court for further findings or a modification of the sentences to concurrent terms
would be in order. In this case, however, the record establishes that consecutive sentencing is
appropriate. The defendant, who was on bail on a charge of driving under the influence, third
offense, related to a car accident that had caused significant property damage to two vehicles, was
subsequently involved in a second accident with a single car that seriously injured the four teenage
occupants. The defendant's blood alcohol at the time of the second accident was more than twice
the legal limit. See Tenn. Code Ann. § 455-10-401(a)(2) (1997 & Supp. 2001). Despite prior
convictions for driving under the influence, other alcohol-related offenses, and three alcohol-related
car accidents, the defendant continued to drink and drive. Further, he admitted that he had not
sought help for his alcohol addiction and had, in fact, continued to consume alcohol on a regular
basis after the accidents resulting in these convictions.

         The presentence report established that the injuries to the victims were quite severe. One of
the victims, fifteen-year-old Heather White, was partially ejected from the car. Her left arm was
trapped in the car door and she received a serious laceration to the left side of her face. As a result,
eyelashes will no longer grow on her left eyelid. After three surgeries, she has permanent scars on
her left arm and left leg. The driver of the car, seventeen-year-old Rachel Baxter, suffered a broken
nose, two broken ribs, a bruised spleen, and internal bleeding. Her left ankle and kneecap were
shattered. Her face requires reconstructive surgery. Fifteen-year-old Nicole Baxter suffered a
broken jaw, fractured skull, and torn ear cartilage. The fourth victim, fourteen-year-old Rebecca
White, suffered cuts and bruises. Statements from the mothers of the victims indicate that three of
the victims continue to experience medical problems. Each of the four has suffered emotional
trauma. Under these circumstances, it is our view that the defendant qualifies as a dangerous
offender, that an extended sentence is reasonably related to the seriousness of the offense, and that
consecutive sentencing is necessary to protect the public from this defendant.

       Accordingly, the sentences for three of the four vehicular assault convictions are modified
to two years. The effective sentence is, therefore, eleven months and twenty-nine days plus nine
years. Otherwise, the judgments of the trial court are affirmed.


                                                  -7-
      ___________________________________
      GARY R. WADE, PRESIDING JUDGE




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