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State v. Neblett9/24/1999
Defendant, John D. Neblett, pled guilty to aggravated vehicular homicide, a Class A felony; vehicular assault, a Class D felony; and second-offense driving on a revoked driver's license (DORL), a Class A misdemeanor. The trial court sentenced defendant to 20 years for the aggravated vehicular homicide; 4 years for the vehicular assault, to be served consecutively; and 11 months and 29 days for DORL, to be served concurrently. In this appeal as of right, defendant raises the following sentencing issues:
1. whether the trial court erred in its application of enhancement factors § 40-35-114(6) and (16); 2. whether the trial court erred in its imposition of consecutive sentencing; and 3. whether the trial court erred in admitting victim impact testimony.
After a complete review of the record before us, we AFFIRM the judgment of the trial court.
I. FACTS
In August 1997, while driving intoxicated, defendant failed to observe a stop sign at a highway intersection in Montgomery County. As a result, he hit a car driven by Glenda Atkins. Glenda Atkins' husband, Stephen Atkins, was killed; Glenda Atkins suffered injuries which required an overnight stay in the hospital and surgery to remove glass that lodged next to the bone in her leg. Her hospital bills were between $6,000 and $7,000.
Defendant admitted driving while intoxicated and acknowledged his responsibility for Stephen Atkins' death in a statement to the Tennessee Highway Patrol. He pled guilty to aggravated vehicular homicide related to the death of Stephen Atkins; vehicular assault related to the serious injuries suffered by Glenda Atkins; and second offense DORL.
II. SENTENCING
Defendant challenges the sentences imposed in this case. He asserts the trial court erred in its application of enhancement factors (6) and (16), its imposition of consecutive sentencing, and its consideration of victim impact testimony by Glenda Atkins.
A. Sentencing Hearing
The trial court began its sentencing determination by establishing defendant as a Range I standard offender facing a sentence between 15 and 25 years for aggravated vehicular homicide, between 2 and 4 years for vehicular assault, and up to 11 months and 29 days for the DORL. It recited a list of considerations to be taken into account in reaching its decision which included: evidence from the sentencing hearing, victim impact testimony, the presentence report, and the principles of sentencing.
The court found several applicable statutory enhancement factors. It found defendant's extensive criminal history applicable to enhance all three sentences. See Tenn. Code Ann. § 40-35-114(1). It found the occurrence of defendant's criminal conduct at the intersection of a state highway resulted in a great potential for bodily injury to unsuspecting motorists applicable to enhance the sentences for aggravated vehicular homicide and vehicular assault. See Tenn. Code Ann. § 40-35-114(16). And, it found the particularly great injuries suffered by Glenda Atkins applicable to enhance the sentence for vehicular assault. See Tenn. Code Ann. § 40-35-114(6).
The trial court also acknowledged the existence of mitigating factors under Tenn. Code Ann. § 40-35-113(13); namely, defendant's immediate admission of criminal conduct, and his willingness to plead guilty to avoid the unpleasantness of a trial for the Atkins' family.
B. Standard of Review
This Court's review of the sentence imposed by the trial court is de novo with a presumption of correctness, Tenn. Code Ann. § 40-35-401(d), provided there is an affirmative showing in the record that the trial
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