                                                                                        10/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 16, 2018 Session

               STATE OF TENNESSEE v. LAURA L. BEASLEY

                Appeal from the Criminal Court for Sumner County
                    No. 2015-CR-649 Dee David Gay, Judge
                    ___________________________________

                           No. M2017-00591-CCA-R3-CD
                       ___________________________________


The Defendant, Laura L. Beasley, pled guilty in the Sumner County Criminal Court to
vehicular homicide by intoxication, a Class B felony, and two counts of vehicular assault,
Class D felonies, with the sentences to be determined by the trial court. Following a
sentencing hearing, the trial court imposed sentences of ten years, three years, and three
years, respectively, to be served consecutively in the Department of Correction. On
appeal, the Defendant challenges the length of sentences imposed, the imposition of
consecutive sentences, and the denial of an alternative sentence. After review, we affirm
the sentencing decision of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT H. MONTGOMERY, JR., JJ., joined.

Shyanne C. Riddle (on appeal) and Andrew B. Love (at hearing), Nashville, Tennessee,
for the appellant, Laura L. Beasley.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Lawrence Ray Whitley, District Attorney General; and Sidney Preston, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

       The Defendant was charged with vehicular homicide by intoxication, two counts
of vehicular assault, driving under the influence (“DUI”), DUI – child endangerment, and
violation of the implied consent law as a result of her crashing into another vehicle on
May 15, 2015. After losing a motion to suppress her statements to police, the Defendant
negotiated a plea agreement in which she pled guilty to vehicular homicide by
intoxication and two counts of vehicular assault in exchange for a sentence of no more
than sixteen years to be determined by the trial court following a sentencing hearing. The
DUI and DUI – child endangerment charges merged into the vehicular homicide and
vehicular assault convictions, and the violation of the implied consent law charge was
dismissed.

       If the case had gone to trial, the State’s proof would have shown that the thirty-one
year-old Defendant was driving her vehicle with her two-year-old son in the backseat.
The Defendant crossed the centerline of the highway and struck a vehicle driven by
Samantha Williams and occupied by Mrs. Williams’ daughter, Adrianne Gentry, and Ms.
Gentry’s boyfriend, Nicholas Townsend. Mr. Townsend died at the hospital, and Mrs.
Williams and Ms. Gentry suffered multiple injuries. The Defendant failed a field
sobriety test and refused to comply with the implied consent law. After a search warrant
was obtained for a blood draw, it was determined that the Defendant had a blood alcohol
level of .119 percent approximately two hours after the accident.

       The trial court conducted a sentencing hearing on February 24, 2017. In the
presentence report that was admitted into evidence, the Defendant reported that she began
drinking alcohol when she was seventeen or eighteen years old and would typically
consume “around 8 beers a day several times a week.” She admitted to years of drug use,
involving marijuana, cocaine, heroin, Ecstasy, and one instance of LSD use. The
Defendant reported that she had been in short-term treatment programs twice, the first in
2012 and the second in late 2014/early 2015. She said that she had begun attending
Alcoholics Anonymous meetings since being incarcerated. The presentence report
revealed that the Defendant had prior misdemeanor convictions for violation of the
legend drug law, failure to appear, and a traffic offense. She had also been afforded what
appears to be unofficial diversion on charges of possession of heroin and possession of
drug paraphernalia – the notation to the charges indicating that they were retired and
would be dismissed in one year if there were no further problems.

        The Defendant reported that she was diagnosed as bipolar when she was eighteen
years old and, although given medication, she quit taking it because she “didn’t like how
it made her feel[.]” She said that she needed treatment for her alcohol problem because
“her drinking has progressively gotten worse.” With regard to her family, the Defendant
stated, “Growing up I used to fight with my parents. I have a great relationship with my
parents and family. Most of [the] problems I’ve had with my family [are] due to my
addiction.”

                                           -2-
       At the sentencing hearing, Trooper Adam Grinder, with the Tennessee Highway
Patrol, testified that he arrived at the scene of the accident around 10:30 p.m. on May 15,
2015. The Defendant said that she had drunk one twenty-four ounce beer. When
Trooper Grinder informed the Defendant of Mr. Townsend’s death, she showed no
emotion. However, the Defendant became upset when Trooper Grinder would not let her
get a cigarette from her wrecked vehicle, and she was later seen laughing about
something with the other arrestees in the holding cell.

       Detective Jason Williams, with the Portland Police Department and husband of
victim Samantha Williams, testified that Mr. Townsend had been dating his daughter and
he had come to like Mr. Townsend very much. Detective Williams recalled that on the
night in question, he and Mrs. Williams, his other daughter Alexis Williams, Ms. Gentry,
and Mr. Townsend were returning home after volunteering at a Special Olympics event.
He was driving his vehicle with Ms. Alexis Williams, while Mrs. Williams followed
behind him in her vehicle with Ms. Gentry and Mr. Townsend. As they were driving,
Detective Williams saw the Defendant’s vehicle in the opposite lane of travel going “in
excess of the speed limit.” As was his habit as a police officer, Detective Williams tried
to observe the Defendant’s vehicle in his rear view mirror as it passed him. He lost track
of the vehicle, which initially made no sense to him, until he realized that the Defendant
had crossed the centerline and hit his wife’s car.

      Detective Williams testified that he immediately turned around and called 911. As
he approached the wreck, Detective Williams noticed that his wife’s car was
unrecognizable. He could hear his wife and daughter inside, but he heard nothing from
Mr. Townsend. His wife and daughter sustained numerous injuries but survived.
However, Mr. Townsend sustained a “massive head injury” and did not survive. Mrs.
Williams’s 2010 Nissan Cube was totaled. Detective Williams said that the accident had
a “devastating” effect on his family and “totally altered the trajectory of all [their] lives.”

       Samantha Williams testified that she was fond of Mr. Townsend and that the
accident had devastated her family. She recalled that Mr. Townsend was set to graduate
from high school the next day, and he was trying to figure out a way to do that and help
with a Special Olympics event at the same time. Mrs. Williams stated that she tried to
avoid the Defendant’s car when she saw it coming toward her but was unable to do so.
After the crash, she saw that Mr. Townsend’s “head was split open and his brains were
coming out,” and she tried to keep her daughter from looking at him. She asked about
the driver of the other car and learned that alcohol was involved. Mrs. Williams
sustained a broken finger, busted nose, and numerous burns and bruises.

       Mrs. Williams testified that as a result of the accident, she was “terrifie[d]” to
drive at night. She does not attend holiday events knowing that drunk drivers will be on
                                             -3-
the road. She has nightmares about what happened and replays it “over and over in [her]
head all the time.” Her daughter had to seek counseling, and Mrs. Williams thought that
the accident had “pushed” her daughter away from her a bit.

        Adrianna Gentry was in the car with her mother when the accident occurred. She
was a freshman in high school at the time, and Mr. Townsend was a senior. She recalled
that Mr. Townsend “had so much pride in his country, and he was a great individual, and
he was caring for . . . just anyone[.]” Ms. Gentry gave her account of the accident,
including her seeing the extent of Mr. Townsend’s injuries. She sustained broken ribs
and a bruised lung in the crash. Despite having counseling, she has panic attacks, a hard
time concentrating in school, experiences nightmares, and suffers from post-traumatic
stress disorder.

       Alexis Williams was riding with her father when the accident occurred. She read
a statement into the record detailing the devastating effect the accident had on her and her
family.

       John Griffith testified that he knew Mr. Townsend through Mr. Townsend’s
involvement in the Sumner County Young Marines, of which Mr. Griffith was the
executive officer. Mr. Griffith read a statement into the record in which he related his
grief over the loss of Mr. Townsend and how a promising future had been cut short by the
Defendant’s “terrible decision[.]”

       Summer Wims, Mr. Townsend’s older sister, read a statement into the record in
which she detailed the array of emotions she experienced as a result of Mr. Townsend’s
death and the impact his death had on her.

        Tonya Reid, Mr. Townsend’s mother, provided the court with a number of
photographs of her son, showing him with his siblings and preparing to graduate from
high school. Ms. Reid read a lengthy statement into the record, relating the devastating
effect that her son’s death had on the family and how she would “never see [her] amazing
son accomplish all he had set out to do.”

       Next, the Defendant called witnesses on her behalf. Janelle Lawson testified that
she and the Defendant were childhood friends but still kept in touch with each other. Ms.
Lawson described the Defendant as a timid and quiet person but always willing to help.
Ms. Lawson said that she never saw the Defendant drink or use drugs when they were in
high school, but she and the Defendant drank alcohol when the Defendant visited Ms.
Lawson at college. The Defendant never said anything to her about having a drug or
alcohol problem.

                                           -4-
       Ashley Beasley, the Defendant’s older sister, testified that she and the Defendant
were raised in a “peaceful and loving” home. She said that growing up, the Defendant
was a shy and quiet person who preferred to stay at home. Ms. Beasley described the
Defendant as “a very loving, caring person” and not “a heartless, aggressive person.”
Ms. Beasley never saw the Defendant drink alcohol in high school. The Defendant did
not begin making poor choices in life until she met Michael Curtis, with whom she
eventually had a son. Ms. Beasley said that Mr. Curtis used drugs, and she recalled an
instance when Mr. Curtis “dumped” the Defendant at the hospital after a drug overdose.
Ms. Beasley described Mr. Curtis as “a very mean person” and noted that he “trashed”
the Defendant’s apartment on one occasion. Ms. Beasley did not know if the Defendant
suffered from a mental illness, but she noted that the Defendant had always been self-
conscious about her weight and appearance. Ms. Beasley was aware that the Defendant
had been in a drug treatment program a number of years before the incident in this case.
She believed that the Defendant would do well in “a super structured environment”
where she was drug-tested, had a curfew, and received counseling.

       On cross-examination, Ms. Beasley acknowledged that despite being close with
the Defendant, she did not know about the Defendant’s admitted drug and alcohol use
beginning at the age of seventeen or eighteen. Ms. Beasley said that after the
Defendant’s drug overdose in 2008, her family took steps to get the Defendant into
treatment, but she did not recall any specifics other than the Defendant went into rehab at
some point. Ms. Beasley conceded that no one forced the Defendant to use drugs and
alcohol; rather it was the Defendant’s choice.

       Joel Beasley, the Defendant’s father, testified that the Defendant was a very quiet
child who kept to herself but was eager to help out around the house. She was only
average as a student and an athlete; however, she tried as hard as she could to excel. He
admitted that the Defendant was not very social in high school and did not handle stress
well, which caused him and his wife some concern. When the Defendant was in her late
teenage years, Mr. Beasley and his wife began to worry that the Defendant had some kind
of emotional or mental illness because she spent “way too much time in her room” and
was not “blossoming, changing, getting ready for the real world[.]” Mr. Beasley recalled
that the Defendant had several jobs over the years, with the most recent being with a
home cleaning company.

       Mr. Beasley testified that he did not allow alcohol in his home and did not think
that the Defendant used drugs or alcohol until she began dating Michael Curtis, who
appeared to have influence over her. Mr. Beasley recalled the Defendant’s nearly dying
of a drug overdose. When the Defendant got pregnant with Mr. Curtis’s baby, she moved
in with her parents and “did great through the pregnancy[,]” delivering a healthy baby
boy. Some point later, Mr. Curtis overdosed on drugs and died, and the Department of
                                           -5-
Children’s Services (“DCS”) got involved and placed the Defendant’s baby in emergency
custody of Mr. Beasley and his wife. The Defendant was living with them at the time of
the accident in this case, and they watched her to make sure she went to work and came
home on time. They saw no evidence, in the form of behavior or physical signs, that she
was using drugs.

       Mr. Beasley testified that on the day of the accident, the Defendant’s baby was
being cared for by another couple while he went to a job interview and the Defendant
went to work. The Defendant was supposed to pick up her son at the end of her work
day. Mr. Beasley became concerned when the Defendant did not arrive home by 7:00
p.m., but he learned from the Defendant around 9:30 p.m. that she had been delayed
because her son was playing with another child and was now on the way home. A short
while later, Mr. Beasley received a phone call from the Defendant saying that she had
been in an accident. When he talked to the Defendant later that night, she was very upset
that someone had been badly injured. Mr. Beasley hypothesized that the reason the
Defendant refused to comply with the implied consent law was because she had been
advised by a lawyer during the situation with DCS to “[n]ever agree to do anything.”

       Mr. Beasley acknowledged that the Defendant had been in a thirty-day treatment
program a couple of times and had also obtained counseling at a Christian counseling
center on three or four occasions. However, he thought she needed a more structured
program. Mr. Beasley had no personal knowledge of whether the Defendant suffered
from specific mental health problems, but the Defendant told Mr. Beasley’s wife that she
had been diagnosed as bipolar.

       On cross-examination, Mr. Beasley admitted that he was unaware that the
Defendant stated in her presentence report that she used alcohol and marijuana when she
was seventeen or eighteen and was using cocaine and Ecstasy in 2004. He said that he
“[a]bsolutely” would have gotten the Defendant into treatment had she come to him
seeking help, but she had not done so. Mr. Beasley acknowledged that he and his wife
were given emergency custody of the Defendant’s son after the incident where Michael
Curtis overdosed, and the Defendant and her son were with him at the time. Mr. Beasley
was not aware that the Defendant was using heroin with Mr. Curtis when he overdosed
and died. With regard to the night of the accident, Mr. Beasley agreed that it was
dangerous for the Defendant to have her son in the car while she was drinking. Asked if
he agreed with the Defendant’s statement in her presentence report that she frequently
fought with him and his wife while in high school, Mr. Beasley said that he did not
understand that statement but that “every . . . family has fights.”

      The Defendant testified that she felt “[a]wful” about the accident and wished that
she “could take it all back.” The Defendant recalled that on the day of the accident, she
                                          -6-
had gotten up early to take her son to the babysitter and then went to work cleaning
homes. When she got off work, she bought two twenty-four ounce beers and drank one
in the parking lot of the convenience store before going to pick up her son. The
babysitters had taken her son out to dinner, so she drank the other beer while waiting for
them to get back. She said that she was not using any drugs and had not done so since
her last time in rehab. After picking up her son, she got confused about how to get home
because she was not familiar with the area. She was looking at her GPS device and when
she looked up, she saw headlights and “tried to jerk out of the way[,]” but hit the victims.

        The Defendant explained Trooper Grinder’s testimony that she had asked for a
cigarette and did not act concerned that someone had been seriously hurt by saying that
she did not know exactly what had happened at the time, was in a state of shock, and
needed a cigarette to calm down. She explained that she refused to consent to a blood
test because she had “never been put in that position” and “figured [she] needed to refuse
until [she] had a lawyer.”

        The Defendant testified that she is shy and gets very nervous in front of people.
Around the age of thirteen, she started to hate her appearance and feel like she was not
“good enough for anything.” She began to cut herself on her legs and then progressed to
anorexia by the age of seventeen or eighteen. Her family got her into counseling, but she
just threw up whatever she ate. She also began experimenting with drugs and alcohol
with friends around the age of seventeen or eighteen. She met Michael Curtis in her early
twenties and was initially unaware that he used drugs. When she found out, she
nevertheless continued dating him because he was her first real boyfriend. She started
using drugs with him not long after that. She believed that her mental illness made her
susceptible to drug use because she had poor coping skills and using drugs made her “feel
numb to all the things that made [her] feel so horrible.” In time, her drug use progressed
to intravenous use. As her and Mr. Curtis’s drug addiction worsened, their relationship
deteriorated to where he would assault her and destroy her property. Nevertheless, after
getting pregnant by Mr. Curtis and having an abortion, she and Mr. Curtis later ended up
having a child together. She moved in with her parents when she became pregnant the
second time and eventually broke up with Mr. Curtis. When her son was around two
years old, she and her son were with a friend named Josh Estes when Mr. Estes
overdosed and died. She called 911, which precipitated DCS stepping in and taking her
son away from her.

       The Defendant said that she would like to get treatment and “be a productive
person in society[.]” She believed that her past attempts at treatment were not effective
because she did not get help with her mental health issues. She said that her mother once
told her that mental illness ran in her family and that she “probably should get help[.]”
She took Paxil for a time and attended some therapy sessions when she was eighteen or
                                           -7-
nineteen, but she “didn’t respond well” to the therapy. The Defendant said that she knew
she would go back to using drugs after her first stay in short-term rehab, but she stopped
using drugs after her second stay because she wanted to get her son back. Since being
incarcerated, she had learned that she was suffering from depression and anxiety and was
prescribed Celexa, which had “helped some.” She applied to a long-term treatment
program called Mending Hearts and heard that she had been accepted.

       On cross-examination, the Defendant said that she did not recall telling the
presentence report officer that she used to fight with her parents due to her drug use when
she was growing up. Instead, she asserted that she had a “great” relationship with her
parents. She admitted that she never talked to her parents about getting help with her
addiction but said that she talked to them “a little bit” about her mental health. She
agreed that she had been sporadically employed since graduating from high school.

        The Defendant testified that she went to a short-term treatment facility for the first
time in 2012 after her first drug arrest and that was the only time she attempted to get
mental health treatment. She admitted that she could have gotten help if she had asked
and that throughout her life there had been multiple warning signs that she needed to get
help. She went to a short-term treatment facility for a second time in December 2014.
However, she admitted that she only attended a few Alcoholics Anonymous meetings
after leaving the facility. She also admitted that the car accident in this case occurred
only five months after her discharge from treatment and that it was her drinking that
caused the crash. She said that she continued to drink because she could not deal with the
death of her friend Mr. Estes. However, she asserted that she now wanted to seek
treatment and raise her son.

        With regard to the evening of the accident, the Defendant admitted that she had at
least three, possibly four, twenty-four ounce beers between 7:46 p.m. and 10:00 p.m. She
agreed that it was her impairment and not looking at the GPS that was the cause of the
accident.

        After the conclusion of the testimony and hearing arguments from both parties, the
trial court made lengthy findings in determining the Defendant’s sentence. The court
observed that the Defendant was making excuses and trying to shift responsibility.

        In determining the length of the individual sentences, the court found as
enhancement factors that: the Defendant had a previous history of criminal convictions or
criminal behavior, based on her past drug use and misdemeanor convictions; the personal
injuries inflicted on the victims were particularly great, based on the property damage
resulting in two destroyed cars; and the Defendant had no hesitation about committing a
crime when the risk to human life was high, noting that the Defendant admitted to
                                            -8-
drinking four, twenty-four ounce beers and then driving with her young son in the car.
The court found no applicable mitigating factors. The court noted that, pursuant to State
v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008), it was also considering whether the
imposition of the sentence was justly deserved in relation to the seriousness of the
offense; whether the punishment was sufficient to prevent crime and promote respect for
the law; and the Defendant’s potential for rehabilitation or lack thereof. The court found
that the crime was very serious, resulting in one death, two injuries, and the potential for
injury to the Defendant’s son. The court recalled a number of recent cases before the
court involving vehicular deaths or injuries. Citing statistics that someone was killed by
a drunk driver every fifty minutes, the court determined that the deterrent effect of a
sentence was great. As to potential for rehabilitation, the court found that the Defendant
“had ample opportunities in [her] life to get help” and that it took her killing someone to
realize that she was ready to get help. However, the court noted that “it just seems a little
less truthful or from the heart, after you’re back in jail and you want to get out.” Based
on all these factors, the court imposed midrange sentences of ten years for the vehicular
homicide conviction and three years for each of the vehicular assault convictions.

       As to consecutive sentencing, the trial court rejected the State’s assertion that the
Defendant was an offender with an extensive record of criminal activity. However, the
court agreed with the State’s contention that the Defendant was a dangerous offender
whose behavior indicated little or no regard for human life and no hesitation about
committing a crime when the risk to human life was high and made extensive findings in
that regard.

        Regarding alternative sentencing, the trial court determined, pursuant to Tennessee
Code Annotated section 40-35-103, that the Defendant’s sentences would be served in
confinement. The court found that confinement was necessary to protect society by
restraining a defendant who has a long history of criminal conduct given the Defendant’s
“lifestyle of criminal conduct” and her “violat[ion] [of] the law every single day that
[she] use[d] and possess[ed] illegal drugs.” The court also found that confinement was
necessary both to avoid depreciating the seriousness of the offense and as a deterrent, for
the reasons previously stated regarding the increasing number of such cases before the
court. The court lastly found that the Defendant had gotten out of a treatment program
just months before the accident.

      Accordingly, the trial court ordered that the Defendant’s sentences be served
consecutively, for an effective term of sixteen years, in the Department of Correction.

                                       ANALYSIS



                                            -9-
       On appeal, the Defendant argues that the trial court imposed an excessive sentence
by: failing to consider any mitigating factors; applying certain enhancement factors;
ordering consecutive sentencing; and imposing a sentence of confinement rather than an
alternative sentence.

       A trial court is to consider the following when determining a defendant’s sentence
and the appropriate combination of sentencing alternatives:

      (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.

Tenn. Code Ann. § 40-35-210(b).

        The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a
trial court’s sentencing determinations under an abuse of discretion standard, “granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707. This
standard of review also applies to “questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

      The Defendant asserts that the trial court should have considered her remorse,
admission of guilt, diagnosed depression, and voluntary efforts to seek help with her
                                          - 10 -
substance abuse as mitigation in determining her sentence. She also challenges some of
the factors used by the trial court to enhance her sentence, asserting that “if the facts that
establish the elements of the offense charged also prove the enhancement factor, the
enhancement factor may not be used to increase punishment.”

       With regard to the factors the Defendant asserts the court should have considered
in mitigation, we note that the court found that the Defendant’s assertions of remorse and
getting treatment while in jail were motivated by her desire to reduce her sentence. In
addition, the court was aware of the Defendant’s assertion of mental illness and, as its
province, either found the assertion to be incredible or simply not providing mitigation
because she never sought meaningful mental health treatment prior to the crime.
Additionally, we note that, while the Defendant did plead guilty, she negotiated a
sentence cap that afforded her some relief from a lengthier sentence.

       The Defendant asserts that “because serious bodily injury and death are elements
of the offenses charged,” her sentence could not be enhanced based on the “personal
injuries inflicted upon [the victim] . . . [being] great.” However, the trial court based the
application of this enhancement factor on the amount of property damage sustained by
the victims. See State v. Danny Ray Dunn, No. E2012-00677-CCA-R3-CD, 2013 WL
1225788, at *5 (Tenn. Crim. App. Mar. 27, 2013). With regard to the court’s finding that
the Defendant had no hesitation about committing a crime when the risk to human life
was high, we note that the Defendant’s actions caused a direct risk to the lives of people
other than the victims. In any event, the Defendant’s long history of unlawful drug use
qualifies as prior criminal behavior and supports the enhancement of the Defendant’s
sentences. Upon review, we discern no abuse of discretion in the trial court’s imposition
of mid-range sentences.

        The Defendant also disagrees with the trial court’s imposition of consecutive
sentencing based on its finding her a dangerous offender. A trial court may order
multiple sentences to run consecutively if it finds by a preponderance of evidence that
one or more of the seven factors listed in Tennessee Code Annotated section 40-35-
115(b) applies, including the one found by the instant trial court, that 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 was high. Tenn.
Code Ann. § 40-35-115(b)(4). When the court bases consecutive sentencing upon its
classification of the defendant as a dangerous offender, it must also find that an extended
sentence is necessary to protect the public against further criminal conduct by the
defendant and that the consecutive sentences reasonably relate to the severity of the
offense committed. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v.
Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995).

                                            - 11 -
        The Defendant argues that there were insufficient aggravating circumstances to
support consecutive sentencing. However, the record supports the trial court’s dangerous
offender finding. The Defendant, having a long history of substance abuse and prior
failed attempts at treatment, drove while intoxicated with her two-year-old son in the car
and caused a head-on collision with tragic consequences and, afterwards, showed no
concern for the victims and appeared only to be interested in getting cigarettes. Her
admission of drinking 3-4 twenty-four ounce beers within two and a half hours of putting
her son in the car is simply stunning. Her 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.
The trial court also made both of the requisite Wilkerson findings. It first determined that
consecutive sentencing was necessary to protect the public given the Defendant’s long
history of drug use, prior overdoses, loss of custody of her child, prior failures at
rehabilitation, sporadic employment, and prior misdemeanor convictions. The court next
determined that consecutive sentencing reasonably related to the severity of the offenses
in that “the repercussions, the effects of [the Defendant’s actions] will last not lifetime,
but lifetimes, generation[s], plural.”

       In any event, the trial court would have been justified in imposing consecutive
sentencing based on the Defendant’s extensive record of criminal activity. This court has
repeatedly held that “[c]urrent offenses may be used in determining criminal history for
the purposes of consecutive sentencing.” State v. Carolyn J. Nobles, No. M2006-00695-
CCA-R3-CD, 2007 WL 677861, at *12 (Tenn. Crim. App. Mar. 7, 2007) (citing State v.
Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992)); see, e.g., State v. Kyle
Ronald Fencl, No. M2012-1265-CCA-R3-CD, 2013 WL 3976060, at *8 (Tenn. Crim.
App. Aug. 5, 2013), perm. app. denied (Tenn. Nov. 13, 2013); State v. Darius Jones, No.
W2010-01080-CCA-R3-CD, 2011 WL 2162986, at *3 (Tenn. Crim. App. May 26, 2011),
perm. app. denied (Tenn. Sept. 21, 2011). Moreover, this factor includes criminal
behavior as well as convictions, see State v. Dickson, 413 S.W.3d 735, 748-49 (Tenn.
2013), and the Defendant’s long-term drug use certainly constitutes criminal behavior.

       With regard to alternative sentencing, the Defendant argues that the trial court
erred in failing to begin its determination with a rebuttable presumption that she was a
favorable candidate for such. The Defendant then essentially disagrees with the trial
court’s reasons for its determination that her sentence be served in confinement.

        We initially note that under the revised Tennessee sentencing statutes, a defendant
is no longer presumed to be a favorable candidate for alternative sentencing. Carter, 254
S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory”
sentencing guidelines provide that a defendant “who is an especially mitigated or
standard offender convicted of a Class C, D or E felony, should be considered as a

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favorable candidate for alternative sentencing options in the absence of evidence to the
contrary[.]” Tenn. Code Ann. § 40-35-102(6).

       A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding 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. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

      To qualify for consideration for punishment in the community, an offender must
meet all of the following criteria:

      (A) Persons who, without this option, would be incarcerated in a
      correctional institution;

      (B) Persons who are convicted of property-related, or drug-or alcohol-
      related felony offenses or other felony offenses not involving crimes
      against the person as provided in title 39, chapter 13, parts 1-5;

      (C) Persons who are convicted of nonviolent felony offenses;

      (D) Persons who are convicted of felony offenses in which the use or
      possession of a weapon was not involved;

      (E) Persons who do not demonstrate a present or past pattern of behavior
      indicating violence; and

                                          - 13 -
      (F) Persons who do not demonstrate a pattern of committing violent
      offenses.

Tenn. Code Ann. § 40-36-106(a)(1).

        Under the “special needs” provision of the statute, an offender who does not
otherwise meet the criteria above “and 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” may be
considered eligible for a community corrections sentence. Id. § 40-36-106(c). In making
this determination, the trial court must first find that the defendant is eligible for
probation and then must determine that (1) the defendant has a history of chronic alcohol,
drug abuse, or mental health problems; (2) these factors were reasonably related to and
contributed to the defendant’s criminal conduct; (3) the identifiable special needs are
treatable, and (4) the treatment of the special need could be best served in the community
rather than in a correctional institution. State v. Grigsby, 957 S.W.2d 541, 546-47 (Tenn.
Crim. App. 1997) (citations omitted).

       However, even where a defendant meets the eligibility requirements of the statute,
the defendant is not automatically entitled to participate. See State v. Ball, 973 S.W.2d
288, 294 (Tenn. Crim. App. 1998). The defendant “bears the burden of affirmatively
showing a ‘special need’ which could be better addressed in the community.” Grigsby,
957 S.W.2d at 547 n.11. Moreover, the trial court is in the best position to ascertain a
defendant’s amenability to a community corrections program given its ability to observe
the defendant’s demeanor and characteristics first hand. Id. at 547.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

      (A) Confinement is necessary to protect society by restraining a defendant
      who has a long history of criminal conduct;

      (B) Confinement is necessary to avoid depreciating the seriousness of the
      offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

      (C) Measures less restrictive than confinement have frequently or recently
      been applied unsuccessfully to the defendant[.]




                                          - 14 -
Tenn. Code Ann. § 40-35-103(1).             Furthermore, the defendant’s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

       The trial court acted appropriately within its discretion in imposing a sentence of
confinement. The record indicates that the Defendant has a lack of potential for
rehabilitation given her lifestyle of criminal conduct and failed prior attempts at
treatment. In addition, the increasing number of similar cases mentioned by the trial
court in its jurisdiction supports its finding that confinement is necessary both to avoid
depreciating the seriousness of the offense and to serve as a deterrent. The trial court’s
denial of an alternative sentence is entitled to a presumption of correctness and we affirm.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the sentencing
decision of the trial court.




                                             ____________________________________
                                             ALAN E. GLENN, JUDGE




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