        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 24, 2014

             STATE OF TENNESSEE v. JOHN WESTIN MASSEY

                Appeal from the Criminal Court for Hamilton County
                     No. 285856     Barry A. Steelman, Judge




                  No. E2013-02305-CCA-R3-CD - Filed June 25, 2014


Pursuant to a plea agreement, the Defendant, John Westin Massey, pled guilty to vehicular
homicide and to driving while under the influence (“DUI”), which was merged with the
vehicular homicide. The sentence was eight years with the trial court to determine the
manner of service of his sentence. After a sentencing hearing, the trial court ordered the
Defendant to serve his sentence in the Tennessee Department of Correction. The Defendant
asserts that the sentence is excessive and that the trial court’s denial of an alternative
sentence was improper based upon the facts of the case. After a thorough review of the
record and applicable law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and D. K ELLY T HOMAS, J R. J., joined.

Michael L. Acuff, Chattanooga, Tennessee (on appeal) and Jerry Summers, Chattanooga,
Tennessee (at trial) for the appellant, John Westin Massey.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District Attorney
General for the appellee, State of Tennessee.

                                       OPINION
                                I. Background and Facts

      This case arises out of a motor vehicle accident that resulted in the victim’s death. A
Hamilton County grand jury indicted the Defendant for vehicular homicide, reckless
endangerment, failure to maintain lane, and two counts of DUI. On April 17, 2013, the
Defendant entered guilty pleas to vehicular homicide and DUI, which were merged, and the
other charges were dismissed. The State offered the following recitation of the facts in
support of the trial court’s acceptance of the guilty plea:

               [I]n Hamilton County, Tennessee, on or about August 16 th , 2012, at
       approximately 11:30 p.m., Hamilton County sheriff’s office deputies were
       called to a crash in the 6500 block of Middle Valley Road.

              Tracy O’Neal was killed in this crash. His family and friends are here
       today, Your Honor.

               Road evidence and witness statements would show that Mr. O’Neal’s
       vehicle was traveling in its lane heading north when the vehicle driven by the
       [D]efendant approached from the opposite direction and crossed two or three
       feet into Mr. O’Neal’s lane of travel, striking Mr. O’Neal’s vehicle with great
       force.

               Mr. O’Neal’s vehicle sustained heavy damage to the front, the driver’s
       side and the roof. Mr. O’Neal was wearing his seat belt, but died as a result
       of the injuries he sustained in the crash.

               In the hospital, [the Defendant] admitted to having had two large
       glasses of wine and having taken a sleeping pill known as Ambien. More than
       an hour after the crash, the [Defendant’s] BAC was .12, and he had a high
       therapeutic dose of Ambien, otherwise known as zolpidem, in his system at .21
       micrograms per milliliter, and he also had less than 0.05 micrograms per
       milliliter of doxylamine in his system. Doxylamine is a sedative commonly
       prescribed for insomnia and is an antihistamine.

Finding a factual basis for the guilty plea, the trial court accepted the Defendant’s guilty plea
to vehicular homicide and DUI with an agreed sentence length of eight years.

       At a sentencing hearing to determine the manner of service of the Defendant’s
sentence, the trial court admitted into evidence the presentence report and the victim impact
statements. Robert Stockburger, a Hamilton County sheriff’s office deputy, testified that he
was involved in the investigation of a crash that occurred on August 6, 2012, at
approximately 11:37 p.m. His investigation revealed that the Defendant was traveling
southbound on Middle Valley Road in a 1999 Ford F-250 when he came upon the victim,
Tracy O’Neal, who was traveling northbound. The Defendant’s vehicle crossed over the
double yellow center line and impacted the victim’s vehicle. Both vehicles rotated, and the

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victim’s vehicle came to a stop in a driveway while the Defendant’s vehicle ended up in a
ditch on the northbound side of the road. The victim was pronounced dead at the scene and
transported to the forensic center. The Defendant was transported to the hospital for medical
treatment where he consented to a blood test and stated that he had consumed “two very large
glasses of Chardonnay” and had taken an Ambien “approximately an hour ago.”

        Deputy Stockburger testified that he spoke with an independent witness that was
traveling on the road at the time of the crash. The witness stated that the Defendant had
traveled past the center line three to five feet before impact with the victim’s vehicle. Deputy
Stockburger also spoke with a witness who had spoken with the Defendant by telephone at
approximately 10:30 p.m. The Defendant had wanted to go to the witness’s house “to drink
a beer and party for about an hour.” The witness told Deputy Stockburger that the Defendant
“appeared fine” during this telephone call. The Defendant ended the telephone call and then
called the witness again approximately ten minutes later. The witness stated that during the
second phone call the Defendant exhibited difficulty “understanding directions and how to
comprehend directions” to the witness’s house. The witness told Deputy Stockburger that
it was “apparent” to him that the Defendant was impaired; however, the Defendant denied
that he had been drinking when asked. The witness was on the telephone with the Defendant
at the time of the crash.

        Deputy Stockburger testified that the Defendant’s blood was drawn at the hospital and
sent to the Tennessee Bureau of Investigation (“TBI”) for analysis. The TBI report showed
a .12 ethyl alcohol gram percentage and presence of doxylamine and Zolpidem in the
Defendant’s system. The victim’s blood was also tested, and the report indicated no traces
of substances in his system.

      During a search of the Defendant’s vehicle, an empty 187-milliliter bottle of Sutter
Home white Zinfandel was found in the bed of the truck and an “almost empty” bottle of
Black Heart spiced rum was found on the passenger floorboard of the Defendant’s vehicle.

        On cross-examination, Deputy Stockburger stated that he had no indication that the
wine and rum from the empty bottles found in the Defendant’s vehicle were consumed the
night of the crash. He agreed that the Defendant stated he had drunk two glasses of
Chardonnay rather than white Zinfandel. After reviewing his report, Deputy Stockburger
testified that the Defendant called the witness at 10:23 p.m. and that the telephone call lasted
thirty-three minutes and five seconds. The second phone call was placed at 11:06 p.m. and
lasted thirty minutes and twelve seconds.

      David Doyle, a long-time friend of the victim, asked the trial court to sentence the
Defendant to the maximum allowable sentence and to deny alternative sentencing. Mr.

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Doyle made this request on the basis of his belief that the Defendant showed no remorse as
was evidenced by the fact that he was on probation for a criminal offense at the time of this
incident.

       Mark Powell, the victim’s childhood friend, asked the trial court to impose the
“maximum penalty” based upon the combination of alcohol, medication, and cellular
telephone usage contributing to the crash.

       The State then played a “montage of photos” in lieu of the widow’s victim statement.
The trial court admitted the DVD of the photographs into evidence.

       Joyce Massey, the Defendant’s mother, testified on his behalf. She spoke about the
changes she had observed in her son over the past year since the crash. She described the
Defendant as “very devastated”and “very remorseful.” Ms. Massey said that the Defendant
shared custody of his six-year-old daughter with the child’s mother. She said that the
Defendant “spen[t] every moment” that he could with his daughter. Ms. Massey stated that
the Defendant had experienced difficulty sleeping since he was an infant, recalling two
occasions before he was three months old when he stayed awake for thirty-six hours. The
Defendant was prescribed Ambien, but he had expressed concerns about the way Ambien
affected him.

        Ms. Massey testified that at the time of this incident, the Defendant lived with her so
that he could be close to his daughter and his job. She said that, if the trial court released the
Defendant from custody, the Defendant could stay in her home again. She agreed that she
would report any violations of the Defendant’s sentence to the proper authorities because she
believed “it would be in [the Defendant’s] best interest.” Ms. Massey confirmed that the
Defendant had not driven since the trial court “took his license” when he pled guilty.

        On cross-examination, Ms. Massey agreed that the Defendant began drinking at age
fifteen. She agreed that she had asked the Defendant to enter a treatment program eight years
earlier, when the Defendant was twenty-one, but the Defendant quit after attending briefly.
Ms. Massey stated that she was unaware of any drug or alcohol treatment undertaken by the
Defendant since the crash and denied any knowledge of the Defendant’s marijuana use.

      Kyleigh Kuschel, who had known the Defendant for five years, testified about her
concerns regarding the Defendant’s depression over this incident. She recalled instances
were the Defendant spoke of committing suicide or “leaving away so no one had to be
worried with what he’s done.” She suggested to the Defendant that he participate in the 1N3
program started by the mother of a “young man” killed in a drunk driving incident.
According to Ms. Kuschel, the program sought to “educate people about drunk driving.” The

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Defendant met with someone at the program who expressed interest in the Defendant
speaking about his experience at local schools.

       Andrew Massey, the Defendant’s uncle, testified that his relationship with the
Defendant was “very strong.” He said that the effect of the victim’s death on the Defendant
was “devastating.” He described the Defendant as a “totally different person” following the
incident. Mr. Massey recalled an encounter between an intoxicated patron and the Defendant
that had occurred in a restaurant three weeks before. He said that the Defendant approached
the person, who was initially “argumentative,” shared his experience related to these
offenses, and paid for the person to take a cab ride home.

       The Defendant offered a statement of allocution expressing his remorse to the victim’s
family and friends.

       After hearing the evidence, the trial court reviewed the general provisions of the
Sentencing Reform Act. The trial court then considered alternative sentencing, noting that
the Defendant had the burden of establishing suitability for full probation. The trial court
stated that it had considered the relevant facts and circumstances, the presentence
investigation, sentencing memorandum, victim impact statements, the testimony at the
hearing, and the principles of sentencing. The trial court found that confinement was
necessary to avoid depreciating the seriousness of the offense and ordered the Defendant to
serve his sentence in confinement. See T.C.A. § 40-35-103(1)(B)(2010). It is from this
judgment that the Defendant now appeals.

                                         II. Analysis

        The Defendant argues that the trial court erred when it denied his request for
alternative sentencing. He also asserts that the trial court failed to “give appropriate weight
to valid mitigating factors advanced by the [Defendant].” The State responds that the trial
court imposed a sentence consistent with the purposes and principles of the Sentencing Act.
We agree with the State.

        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” 380 S.W.3d 682, 708 (2012). A finding of abuse of discretion “‘reflects
that the trial court’s logic and reasoning was improper when viewed in light of the factual
circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,
45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

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To find an abuse of discretion, the record must be void of any substantial evidence that would
support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should
uphold the sentence “so long as it is within the appropriate range and the record demonstrates
that the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the
appropriate range and properly applies the purposes and principles of the Sentencing Act, its
decision will be granted a presumption of reasonableness. Id. at 707.

       Recently, our Supreme Court extended the Bise standard to appellate review of the
manner of service of the sentence. The Court held that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). We are also to recognize that the defendant bears “the
burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).

        In determining the proper sentence, the trial court must consider: (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 Tennessee Code Annotated
sections 40-35-113 and -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 made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2012); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2012).

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:

       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals
       of society, and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration.



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A defendant who does not fall within this class of offenders, “and who is an especially
mitigated offender or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” T.C.A. § 40-35-102(6). Additionally, we note that a trial court
is “not bound” by the advisory sentencing guidelines; rather, it “shall consider” them.
T.C.A.§ 40-35-102(6) (emphasis added).

       Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:

      (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.

T.C.A. § 40-35-103.

       At the sentencing hearing, the trial court sentenced the Defendant, as a Range I,
standard offender, to eight years for vehicular homicide, a Class B felony. In determining
the manner of service of the sentence, the trial court made the following findings:

             [T]he Court finds that the [D]efendant has had an alcohol abuse issue.
      He has abused alcohol for years prior to this particular incident in 2013, such
      that his parents recognized it and that they got him into a rehabilitation
      program, and for whatever reason, it didn’t take and it continued. And then on
      this particular evening, the [D]efendant, by his own admission, . . . within a
      short period of time drank 32 ounces of wine and then drove an automobile [
      ] [while] there was Ambien in his system. The [D]efendant had been taking
      Ambien for quite some time. I noticed that the [D]efendant was aware of
      problems with Ambien, that he had had issues perhaps with amnesia when on
      Ambien.

             ....



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               And so the [D]efendant not only drank 32 ounces of alcohol, wine,
       voluntarily over a short period of time, but he also ingested a prescription drug
       after having done that, and apparently an amount above the therapeutic, above
       the prescribed dosage. That’s reckless.

              ....

              Not only was there an admission of drinking 32 ounces of wine, but
       there was also testimony that in the vehicle where the [D]efendant was was
       another container of wine and a bottle of rum.

              There is evidence before the Court that the [D]efendant was on a
       cellphone, talking on a cellphone while he was driving, and perhaps attempting
       to use a GPS on Middle Valley Road, a two-lane highway where the
       [D]efendant crossed the center line as much as five feet, three to five feet,
       according to this eyewitness. Anything less than confinement would
       depreciate the seriousness of all of those circumstances.

              ....

               [T]he Court does find, under 40-35-103(C), that measures less
       restrictive than confinement have recently been applied unsuccessfully to the
       [D]efendant, and that would be the conviction from General Sessions Court
       related to the domestic assault. And the Court finds that that has considerable
       weight because it, too, was alcohol-related and was within the year of his
       incident at issue today.

The trial court also expressed concern about the Defendant’s marijuana use since the time
of this offense. Based upon its findings under Tennessee Code Annotated section 40-35-103,
the trial court denied the Defendant an alternative sentence.

        The record supports the trial court’s findings. After consuming a large amount of
alcohol and Ambien, the Defendant got behind the wheel of a car to drive to a friend’s house
to “party.” According to the Defendant’s friend, who was on the telephone with the
Defendant at the time of the crash, the Defendant was clearly exhibiting signs of impairment
due to the alcohol and prescription medication. While under the influence and talking on his
cellular telephone, the Defendant crossed over the dividing line into the oncoming lane of
traffic and hit the victim’s vehicle. The victim was pronounced dead at the scene of the
accident due to injuries sustained in the crash. Authorities found an empty wine bottle and
an almost empty rum bottle in the Defendant’s vehicle at the scene of the accident.

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        The trial court considered the pertinent facts of this case and appropriate sentencing
principles. The trial court denied alternative sentencing based on the nature of the offense
and to avoid depreciating the seriousness of the offense. The Defendant has not established
that the trial court abused its discretion by denying probation.

       As to the Defendant’s argument that the trial court did not “give appropriate weight
to valid mitigating factors,” the trial court’s determinations as to the weight given to the
mitigating and enhancement factors is at the trial court’s discretion and not a basis for
reversal by this Court. See State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The
Defendant is not entitled to relief.
                                       III. Conclusion

        After a thorough review of the record and relevant authorities, we conclude that the
trial court properly sentenced the Defendant. As such, we affirm the trial court’s judgment.


                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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