                                                                                       01/24/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 14, 2017

              STATE OF TENNESSEE v. THOMAS J. PRIVETT

                 Appeal from the Circuit Court for Grundy County
                    No. 5580, 5495      J. Curtis Smith, Judge
                     ___________________________________

                          No. M2017-00539-CCA-R3-CD
                      ___________________________________


The Defendant, Thomas J. Privett, entered a guilty plea to vehicular homicide by
intoxication, with an agreed sentence length of ten years and the manner of service to be
determined by the trial court. The trial court held a sentencing hearing and determined
that the Defendant would serve his sentence in the Tennessee Department of Correction.
On appeal, the Defendant argues that the trial court erred in denying alternative
sentencing and in fully revoking his probation on a prior conviction. After a review of
the record, we determine that there was no abuse of discretion, and we affirm the
judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

B. Jeffery Harmon, District Public Defender, and Robert G. Morgan, Assistant Public
Defender, for the appellant, Thomas James Privett.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Mike Taylor, District Attorney General; and David McGovern, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY

       The Defendant, while under the influence of methamphetamine, was driving a
vehicle containing three passengers on Highway 108 in Grundy County. The Defendant
was aware that a spare “donut” tire was on the vehicle and was driving in excess of 100
miles per hour on the curvy highway. An accident occurred that resulted in the death of
one of the passengers, Mr. Nicholas Hamblin.1 The Defendant was charged with one
count of vehicular homicide by intoxication, one count of vehicular homicide by reckless
conduct, two counts of vehicular assault, and one count of driving while under the
influence. The State entered into a plea agreement with the Defendant in which the
Defendant would plead guilty to vehicular homicide by intoxication and the State would
dismiss the remaining charges. The parties agreed to a sentence of ten years, with a
release eligibility of thirty percent and with the manner of service to be determined by the
trial court. Ten days before the accident occurred, the Defendant had pleaded guilty to
aggravated burglary and was sentenced to four years of probation. His probation was
later revoked as a result of this case, and the Defendant was sentenced to serve his entire
four-year sentence concurrently with his ten-year sentence for the vehicular homicide
conviction.

        A sentencing hearing was held to determine the manner in which the Defendant’s
ten-year sentence for the vehicular homicide conviction would be served. At the hearing,
Sheriff Clint Shrum from the Grundy County Sheriff’s Department testified for the State.
Sheriff Shrum testified that he was a drug recognition expert and instructor, specifically
dealing with the recognition of impaired drivers on substances other than alcohol. He
testified that he believed there is a “significant problem” with impaired driving and
methamphetamine use in Grundy County. He testified that, in his opinion, a motorist
under the influence of methamphetamine and driving in excess of eighty miles per hour
on Highway 108 would not be a “safe situation.” Sheriff Shrum acknowledged on cross
examination that he did not have statistical data to support his statement that
methamphetamine use and impaired driving was “much worse [in Grundy County] than
anywhere else,” but he claimed that he did have data to support the fact that such
problems exist in Grundy County.

       The State admitted a presentence report into evidence. The report reflected that
the Defendant had a misdemeanor conviction for possession of drug paraphernalia, for
which he received supervised probation. The report also reflected numerous driving
offenses, as well as judicial diversion for an evading arrest charge and a reckless
endangerment charge. The presentence report also listed domestic violence and
vandalism charges that were dismissed. The report included a statement from one of the
passengers, Ms. Halie Jo Fults. Ms. Fults told an officer at the scene, “I ask[ed] [the
Defendant] to slow down; he did not and he knew there was a spare tire on the vehicle
— I would like to know why he did not slow down.” A victim impact statement from

       1
         We note that the victim’s name is sometimes spelled as “Hamlin” in the record. To
remain consistent with the indictment, we will spell his name as “Hamblin.”
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Mr. Hamblin’s mother was also included in the report, in which the mother requested
leniency on the Defendant.

       The Defendant testified that he was twenty-six years old and had been incarcerated
for the past nine months. He stated that he was being held in a special facility to
accommodate his Type I diabetes, which requires the use of an insulin pump. The
Defendant stated that, on the day of the accident, he had worked during the day and then
went “riding around” for “probably four hours” with Mr. Hamblin, Ms. Kalie Franklin,
and Ms. Fults. He stated that he shared his methamphetamine with “one of the females,”
whom he refused to identify, but that he was not the “main supplier of the vehicle.” The
Defendant stated that he did not remember the accident at the time it occurred but that his
memory had returned “a little bit since then.”

       The Defendant stated that Mr. Hamblin, “was like a brother” to him and that they
had known each other “since [they] were in diapers.” When asked what he would tell
Mr. Hamblin on the day of the hearing, he responded, “How sorry I am. There’s —
there’s nothing I can say to him to bring him back.” When asked what he would tell the
other two passengers in the vehicle, he said that he would “[g]ive anything to take it
back.” The Defendant told the trial court that he was “regretful that [he] didn’t learn”
from his previous criminal history.

       The Defendant stated that he had previously worked with Mr. Darin Tudor in the
sheet metal and air conditioning business and that he was previously an apprentice to Mr.
Chris Cleek in the sheet metal industry. He stated that he had supported his daughter by
paying bills and buying her “clothes, food, whatever she needed.” He testified that his
mother and father were taking care of his daughter while he was incarcerated.

       On cross-examination, the Defendant acknowledged that he had vandalized a
vehicle with his friends while still in high school. He said he destroyed the vehicle out of
“stupidity,” because he was on drugs and because they were “goofing off.” He agreed
that he took a set of wheels from the vehicle. The Defendant also acknowledged an
evading arrest charge, which put seven other vehicles in danger, including three police
cars. He agreed that he had several speeding tickets, but noted that only one traffic
offense involved an accident. He also acknowledged that he was aware of the “donut” on
the vehicle, that he was using methamphetamine, and that he was traveling over 100
miles per hour at the time of the accident.

       The Defendant testified that he was “born an addict,” and that he was prescribed
pain killers following a surgery he had while in high school, which prevent him from
quitting drugs. He stated that he began using methamphetamine when he was around
twenty-three or twenty-four years old. He testified that he had smoked marijuana “a few
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times” but that it was “not [his] thing.” He explained that he had consistently been a drug
addict since at least eighteen years of age with the exception of a six-month period after
leaving a treatment facility. He also acknowledged that he failed a drug screening for
morphine when he turned himself in on his first probation violation following the
accident. He stated that while he had been incarcerated, he had participated in Celebrate
Recovery, and Mr. David Hodges helped him locate rehabilitation programs to attend.
The Defendant also stated that he would be interested in drug court.

        Ms. Tara VanHoosier, the probation officer who prepared the presentence report,
testified that the Defendant had a previous probation violation for a misdemeanor
conviction of possession of drug paraphernalia but that there was no record of his
probation being revoked. Ms. VanHoosier testified that the Defendant had a previous
conviction for aggravated burglary, for which he was to serve his four-year sentence on
probation. She was assigned to have an intake interview with the Defendant as his
probation officer. However, the Defendant’s accident occurred before the Defendant was
scheduled to meet with Ms. VanHoosier. Ms. VanHoosier testified that the Defendant
received his first probation violation on the burglary charge for the Defendant’s use of
methamphetamine and “behaving in a manner that posed a threat to others and himself”
in connection with this case. An order was then issued that prohibited the Defendant
from operating a motor vehicle. Ms. VanHoosier further testified that the Defendant later
tested positive for morphine and admitted to driving a motor vehicle after being
prohibited from doing so. She testified that to her knowledge, the Defendant had not paid
the ordered restitution from his burglary conviction. Ms. VanHoosier further testified
that when interviewing the Defendant for the presentence report, the Defendant reported
that he had given methamphetamine to the other passengers of the vehicle. She stated
that she had contacted Mr. Tudor, who informed her that the Defendant would be able
work with Mr. Tudor “doing heating and air” but that much of the work would be outside
of Tennessee.

        Mr. DeWayne Privett, the Defendant’s father, testified that the Defendant had
played baseball until the Defendant’s injuries prevented him from playing. The
Defendant had surgery on his shoulder when he was sixteen or seventeen years old, and
he was prescribed pain killers after the surgery. Mr. Privett stated that the Defendant
graduated from high school with honors and that the Defendant was diagnosed with Type
I diabetes at seventeen years old. Mr. Privett described the Defendant’s attitude as
changing “just out of the blue,” and he stated that he believed his son’s drug problem
started “somewhere around his senior year.” Mr. Privett explained that the Defendant
went to drug rehabilitation facilities on two separate occasions. He explained that on the
first occasion, the Defendant remained in the facility until “the insurance ran out” but that
the Defendant was told “he was okay to come home.” On the second occasion, he

                                            -4-
remained in a facility for approximately four months but that he came home early
“because he thought he was cured.”

        Mr. Privett also testified that the Defendant had a five-year-old daughter and that
the child’s mother was also involved in the burglary offense. Mr. Privett stated that the
Defendant started to learn the sheet metal industry at a young age by working with Mr.
Privett around the house. The Defendant worked in the industry for some time and
eventually joined a sheet metal union, through which he participated in an apprenticeship
program. Mr. Privett also acknowledged that the Defendant and some of his friends
destroyed a vehicle while they were in high school. The Defendant was required to pay
restitution, which was ultimately paid. Mr. Privett also acknowledged that the Defendant
had an evading arrest charge that occurred close to the Defendant’s eighteenth birthday.

       Chief of Monteagle Police Virgil McNeese testified on behalf of the Defendant.
Chief McNeese stated that he was the Defendant’s football coach when the Defendant
was nine and ten years old. Chief McNeese testified that he knew the Defendant’s
parents and that he was not aware of any drug use or alcoholism in the family home while
the Defendant was growing up.

       Mr. Chris Cleek testified on behalf of the Defendant and stated that he worked
with the Defendant at Allied Mechanical from May to December of 2015. The
Defendant was Mr. Cleek’s apprentice, and Mr. Cleek stated that he never observed the
Defendant being impaired while at work. Mr. Cleek testified that the Defendant left the
job due to lack of work.

        Mr. David Hodges also testified for the Defendant and stated that he was a
certified Peer Recovery Specialist for the Tennessee Department of Mental Health. Mr.
Hodges testified that he knew the Defendant from the Defendant’s participation in
Celebrate Recovery while the Defendant was incarcerated. The Defendant completed an
eight-week course called Life’s Healing Choices, which is a component of Celebrate
Recovery. Mr. Hodges said that he believed the Defendant was present for every class
and that the Defendant was “engaged” and “participating.” Mr. Hodges also stated that
he helped arrange for the Defendant to be interviewed and accepted into three other
treatment programs. Mr. Hodges testified that the Defendant had expressed a desire to
attend a treatment program on multiple occasions. Mr. Hodges acknowledged that there
are some programs available in the jail and the Tennessee Department of Correction that
address drug use.

       The trial court denied alternative sentencing and determined that the Defendant
would serve his sentence in the Tennessee Department of Correction. The trial court
applied four enhancement factors: the Defendant had a previous history of criminal
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behavior; the Defendant had previously failed to comply with conditions of a sentence
releasing the Defendant back into the community; the Defendant did not hesitate when
committing a crime that involved a high risk to human life; the Defendant had been on
probation at the time of offense; and the Defendant had a juvenile adjudication that would
constitute a felony if committed by an adult. See T.C.A. § 40-35-114(1), (8), (10), (13),
and (16). The trial court noted that it gave “heavy weight” to factor (1), that the
Defendant had a previous history of criminal behavior, and to factor (10), that the
Defendant had no hesitation about committing the crime when the risk to life was high.
The court gave “moderate weight” to factors (8) and (13), where the Defendant had been
on probation for ten days when the accident occurred.

       The trial court determined that the Defendant was a favorable candidate for
alternative sentencing but still denied alternative sentencing. The court noted, “The proof
establishes [the Defendant] has continuously violated the law, failed at probation and
rehabilitation, is a drug addict and the Court concludes he is likely to misuse automobiles
even when not licensed to drive.” The Defendant timely appealed the denial of
alternative sentencing for his vehicular homicide conviction and the full revocation of his
probation for his aggravated burglary conviction.

                                       ANALYSIS

       A trial court’s decision regarding alternative sentencing is reviewed for abuse of
discretion, accompanied by a presumption of reasonableness for a sentence that falls
within the appropriate range and reflects that a decision was based on the purposes and
principles of sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A trial
court’s decision regarding probation will only be invalidated if the court “wholly
departed from the relevant statutory considerations in reaching its determination.” State
v. Sihapanya, 516 S.W.3d 473, 476 (Tenn. 2014) (order) (per curiam). Under an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. at 475.

       The trial court should consider “[t]he potential or lack of potential for the
rehabilitation or treatment of the defendant” in determining whether alternative
sentencing should be granted. Id. § 40-35-103(5). A trial court may deny alternative
sentencing when:

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




                                            -6-
      (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(1). “When considering probation, the trial court should consider the
nature and circumstances of the offense, the defendant’s criminal record, the defendant’s
background and social history, the defendant’s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public.” State v. Brian Allen Cathey, No. E2015-01284-CCA-R3-CD,
2016 WL 2641766, at *3 (Tenn. Crim. App. May 6, 2016) (citations omitted). The court
should also consider the defendant’s truthfulness. State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983). The defendant bears the burden of establishing his suitability for
probation. Id. § 40-35-303(b).

      Here, the Defendant was eligible for alternative sentencing because his sentence
was for ten years. See T.C.A. § 40-35-303(a) (Supp. 2016). Although the trial court
determined that the Defendant was a favorable candidate for alternative sentencing, the
Defendant was convicted of a Class B felony and, therefore, was not considered to be a
favorable candidate under the statute. See T.C.A. §§ 39-13-213(2)(A); 40-35-102(6)(A).

        The Defendant argues that when applying enhancement factors (1) and (16), the
trial court erroneously considered prior convictions and adjudications that were included
in the presentence report when no corresponding judgments or juvenile records were
included. “[F]acts relevant to sentencing need be established only ‘by a preponderance of
the evidence and not beyond a reasonable doubt.’” State v. Cooper, 336 S.W.3d 522, 524
(Tenn. 2011) (quoting State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)). The
Defendant testified to his own history of criminal behavior. He acknowledged that he
had an evading arrest charge, several speeding tickets, and another traffic offense that
resulted in an accident. The Defendant also acknowledged that he vandalized a vehicle
and stole its wheels when he was a juvenile. Mr. Privett also testified as to the
Defendant’s previous vandalism and evading arrest charges. Additionally, it is
undisputed that the Defendant had pleaded guilty to, and was sentenced to probation for,
aggravated burglary merely ten days before the accident occurred. The presentence
report, along with the testimony of the Defendant and Mr. Privett, clearly established
these facts by a preponderance of the evidence.

       The Defendant asserts that the trial court gave too much weight to enhancement
factors (1), (10), and (16) and failed to apply mitigating factor (13) when testimony
                                          -7-
demonstrated that the Defendant had a good work ethic and supported his family. See
T.C.A. § 40-35-113(13). We note that “mere disagreement with the trial court’s
weighing of the properly assigned enhancement and mitigating factors is no longer a
ground for appeal.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Moreover,
Tennessee Code Annotated section 40-35-210(b) includes enhancement and mitigating
factors in a list of multiple considerations to be made by a court in determining the
appropriate combination of sentencing alternatives. In denying alternative sentencing,
the trial court properly considered multiple enhancement factors, the presentence report,
and the testimony from the sentencing hearing. See T.C.A. § 40-35-210(b). While the
trial court did not make an explicit finding regarding the factors in Tennessee Code
Annotated section 40-35-103(1), it is clear from the record that the court found that
confinement was necessary to protect society by restraining the Defendant who has a
long history of criminal conduct and that measures less restrictive than confinement had
recently been applied unsuccessfully to the Defendant. The record supports these
findings. Accordingly, we conclude that the trial court did not abuse its discretion in
denying alternative sentencing for the vehicular homicide conviction.

       In regards to the Defendant’s probation revocation claim, the Defendant asserts
that the trial court may have “reconsidered a full revocation of the Defendant’s
probation” if the Defendant had received an alternative sentence on the vehicular
homicide conviction. The contention that the Defendant’s probation should be reinstated
is not supported by argument or with any citations to authority. Consequently, we
conclude that this issue is waived. Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will
be treated as waived in this court.”).

                                     CONCLUSION

       Based on the foregoing, the judgment of the trial court is affirmed.




                                                  ________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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