        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 28, 2009

               STATE OF TENNESSEE v. GEORGE CHISHOLM

                  Appeal from the Criminal Court of Bradley County
                  Nos. M-08-289 and M-08-290 Carroll Ross, Judge




                No. E2008-02670-CCA-R3-CD - Filed February 3, 2010




The Defendant, George Chisholm, pled guilty in the Bradley County Criminal Court to
driving under the influence, eighth offense, a Class E felony, and to two counts of vehicular
assault, Class D felonies. The trial court sentenced the Defendant to two years for the DUI
to be served consecutively to concurrent four-year sentences for the vehicular assault counts,
for a total effective sentence of six years incarceration. In this appeal as of right, the
Defendant contends that the trial court should have granted some form of alternative sentence
in consideration of the condition of his health. Following our review, we affirm the denial
of alternative sentencing, but we remand for the correction of the judgments.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and JAMES C URWOOD W ITT, J R., J., joined.

Kenneth L. Miller, Cleveland, Tennessee, attorney for appellant, George Chisholm.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; R. Steven Bebb, District Attorney General; and Brooklynn Martin,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.

                                         OPINION

       The record reflects that the Defendant’s convictions arose from two separate accidents
in March 2008. In case number M-08-289, the Defendant pled guilty to driving under the
influence, eighth offense, for an incident occurring on March 3, 2008. Additional charges
of driving on a restricted license and leaving the scene of an accident were dismissed
pursuant to the plea agreement. In case number M-08-290, the Defendant also pled guilty
to two counts of vehicular assault occurring on March 20, 2008, with additional charges of
felony DUI and driving on a restricted license dismissed pursuant to the plea agreement. The
plea agreements left to the trial court’s discretion all issues regarding sentencing.

        Initially, we note that the judgments in both cases contain errors concerning a
misnumbering of counts. In case number M-08-289, counts three and four were dismissed;
however, the judgments reflect that counts two and three were dismissed. Also, count one
reflects a guilty plea to DUI ninth offense; however, the transcript and indictment both reflect
a charge and plea to DUI, eighth offense. In case number M-08-290, the judgments reflect
that counts one and four were dismissed; however, counts one, two, and five were dismissed
pursuant to the plea agreement. The remaining counts for vehicular assault – counts three
and four – are also misnumbered as counts two and three in the judgments. Accordingly, the
trial court is directed on remand to correct the judgments to accurately reflect the counts and
what transpired in the guilty plea submission hearing.

        Margaret Hicks testified at the Defendant’s sentencing hearing and described the
accident on March 20, 2008. She stated that the Defendant turned from a side street and hit
her vehicle head on. She suffered a fractured neck, fractured sternum, both broken ankles
and knee injuries. She stated that she was awaiting surgery for a double knee replacement
as a result of injuries suffered in the accident. She also testified that her husband, James,
suffered a broken back, fractured left hand, and broken right hand in the accident. Both she
and her husband were airlifted from the accident scene to Erlanger Hospital in Chattanooga
due to the seriousness of their injuries. Ms. Hicks reported that out of the over two hundred
thousand dollars in medical bills, they had paid six thousand six hundred and ninety-six
dollars out-of-pocket. When asked how the accident had affected their lives, she said, “Our
life has just really stopped.”

       Janice Johnson of the Tennessee Board of Probation and Paroles testified that she
prepared the presentence report for the Defendant’s cases. She recalled interviewing the
Defendant and noted that his main concern was whether he would receive probation. She
stated that he did not seem curious about the victims at all and did not ask about their
condition. When asked about his involvement in the crimes, Ms. Johnson testified that the
Defendant simply answered, “I’m guilty.”

        At the time of the sentencing hearing, the Defendant was sixty-one years old. He
testified that he was a Vietnam Veteran and had retired from the Bowater paper plant after
thirty years of employment. In 2001, he went on disability due to a back injury incurred after
falling from his roof. He reported that he also suffered a stroke about four years ago which
left him with only forty percent usage of his left side. The Defendant stated that he suffered
injuries from the March 20 accident and that he was awaiting knee replacement surgery due

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to a shattered kneecap. The Defendant testified that since the accident he had stopped
drinking, but he admitted to drinking on one occasion when some friends brought beer to his
home to watch a ball game. However, he reported that he no longer drives and has his niece
and some other friends drive him for errands and appointments. The Defendant testified that
his physical problems have rendered him unable to perform his own personal care and that
an assistant comes to his home to take care of his personal hygiene. When asked on cross-
examination why he drove impaired again while on bond for the first offense, he replied that
it was “stupidity.” He also acknowledged that he was on probation for a weapons offense
when he committed the present offenses.

        The Defendant’s niece and friends testified and corroborated the Defendant’s account
of his physical condition. The State also admitted the blood alcohol test results from both
incidents, showing that the Defendant had a blood alcohol content of .21 on March 3 and a
blood alcohol content of .22 on March 20.

       At the conclusion of proof at the sentencing hearing, counsel for the Defendant agreed
that the Defendant should be sentenced to the maximum sentences of two years and four
years for the offenses. Counsel also acknowledged that the sentences concerning each
separate incident should run consecutively because the March 20 offenses were committed
while the Defendant was on bond for the March 3 DUI. However, counsel urged the trial
court to impose a sentence of community corrections supervision after the service of one
hundred and eighty days in jail.

        The trial court imposed the maximum Range I sentences of two years for the DUI and
four years for each count of vehicular assault based upon its findings regarding the
Defendant’s history of criminal convictions, the involvement of more than one victim in the
offenses, the particularly great injuries suffered by the victims, and the Defendant’s history
of unwillingness to comply with conditions of release as evidenced by his past failure to
complete probationary sentences. See Tenn. Code Ann. § 40-35-114 (1),(3), (6), and (8).
The trial court also ordered the Defendant to serve the sentences for the vehicular assaults
concurrently with one another but consecutively to the DUI sentence based upon its findings
that the Defendant’s criminal history is extensive, that he is a dangerous offender, and that
he was sentenced for offenses committed while on probation. See Tenn. Code Ann. § 40-35-
115(b)(2), (3), and (6). The trial court then ordered the Defendant to serve his sentence in
confinement, denying all forms of alternative sentencing, based upon its findings that
confinement is necessary to protect society by restraining a defendant who has a long history
of criminal conduct, to avoid depreciating the seriousness of the offense, and because
measures less restrictive than confinement had been applied unsuccessfully to the Defendant
in the past. See Tenn. Code Ann. § 40-35-103(1)(A)-(C). While noting that the trial court
was not unsympathetic to the Defendant’s health concerns, the trial court stated that the



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Defendant’s actions caused many of his health problems and that the trial court was not
willing “to allow [the Defendant] to stay loose and run the risk of killing someone.”

                                         ANALYSIS

        On appeal, the Defendant contends that the trial court failed to take into consideration
his present physical disability and that the trial court should have imposed the suggested
sentence of split confinement followed by community corrections supervision based upon
his special needs. The State argues that the Defendant is ineligible for community
corrections due to the violent nature of his convicted offenses and the required incarcerative
sentence of his DUI conviction. The State also contends that the trial court gave proper
consideration to the sentencing considerations in denying alternative sentencing, particularly
in light of the Defendant’s commission of these offenses while on probation.

        Although not raised by the parties, we note that the trial court erroneously applied the
multiple victim enhancement factor in light of the Defendant’s convictions for vehicular
assault related to each victim in the offense. However, the erroneous application does not
affect the length of sentence imposed in light of the remaining factors.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2006).
As the Sentencing Commission Comments to this section note, on appeal the burden is on
the defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, the court may not
disturb the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App. 1991).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the potential for
rehabilitation or treatment, and (8) any statistical information provided by the Administrative
Office of the Courts as to sentencing practices for similar offenses in Tennessee. Tenn. Code
Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168; State v. Moss, 727
S.W.2d 229, 236-37 (Tenn. 1986).

        In determining whether incarceration or an alternative sentence is more appropriate,
a trial court should consider whether (1) confinement is needed to protect society by

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restraining a defendant who has a long history of criminal conduct, (2) confinement is needed
to avoid depreciating the seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to people likely to commit similar offenses, or (3) less
restrictive measures than confinement have frequently or recently been applied
unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing Tenn. Code Ann. §
40-35-103(1)(A)-(C)). The trial court shall also consider the mitigating and enhancing
factors set forth in Tennessee Code Annotated sections 40-35-113 and -114. Tenn. Code
Ann. § 40-35-210(b)(5) (2006); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App.
1996). In addition, a trial court should consider a defendant’s potential or lack of potential
for rehabilitation when determining if an alternative sentence would be appropriate. Tenn.
Code. Ann. § 40-35-103(5); Boston, 938 S.W.2d at 438. Ultimately, in sentencing a
defendant, a trial court should impose a sentence that is “no greater than that deserved for the
offense committed” and is “the least severe measure necessary to achieve the purposes for
which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       On appeal, the Defendant argues that the trial court should have granted him a
sentence of split confinement involving community corrections based on his present physical
disability and overall poor health. As noted by the State, the Defendant’s convictions for two
counts of vehicular assault would generally render him ineligible for placement in
community corrections. See Tenn. Code Ann. §§ 40-36-102(11), (15), -106(b). However,
Tenn. Code Ann. § 40-36-106(c) provides that otherwise ineligible offenders:

              who would be usually considered unfit for probation due to
              histories of chronic alcohol or drug abuse, or mental health
              problems, but whose special needs are treatable and could be
              served best in the community rather than in a correctional
              institution, may be considered eligible for punishment in the
              community under the provisions of this chapter.

        At the sentencing hearing, the trial court noted the Defendant’s long history of DUI
offenses and remarked that it was inexplicable how the Defendant had avoided a felony DUI
conviction up to this date. The trial court also noted that the Defendant had committed the
most serious offenses of vehicular assault while on bond for the eighth offense DUI and that
both of these incidents occurred while on unsupervised probation for a weapons offense.
Regarding the Defendant’s special needs, the trial court stated that the Defendant’s present
physical condition stemmed from the present offenses and the Defendant’s chronic history
of drinking. The trial court voiced great concern that a sentence less than confinement would
risk the safety of others on the road and therefore, the Defendant’s special needs would not
be “best served in the community.” The trial court found that these facts indicated that the
Defendant’s potential for rehabilitation was low and therefore confinement was necessary
to protect society from the Defendant and to avoid depreciating the seriousness of the

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Defendant’s offenses. We further note that the Defendant testified that he only stopped
drinking since the occurrence of vehicular assaults and that he even admitted that he had
been drinking on a least one occasion since that date. Additionally, the Defendant only
contends that he has special needs related to his physical limitations and has never argued
that his special needs stem from chronic alcohol abuse or the need for alcoholism treatment.
Accordingly, we conclude that the record supports the trial court’s findings and denial of
community corrections or other forms of alternative sentencing, and we affirm the judgments
of the trial court.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court denying alternative sentencing are affirmed. However, the trial court is directed
on remand to correct the judgments to accurately reflect the counts and that the DUI
conviction is for eighth offense, consistent with the indictments and as reflected in the guilty
plea submission hearing.

                                                    _______________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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