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State v. Weems3/27/2003
The defendant was indicted on alternative counts of vehicular homicide as the proximate result of conduct creating a substantial risk of death and vehicular homicide by intoxication after an automobile accident on June 25, 1999, in which three passengers in the defendant's vehicle were killed. See Tenn. Code Ann. § 39-13-213(a)(1), (2). The defendant subsequently entered a plea of nolo contendere to three counts of vehicular homicide as the proximate result of conduct creating a substantial risk of death. Id. § 39-13-213(a)(1). After conducting a sentencing hearing, the trial court sentenced the defendant to concurrent sentences of five years on each count and denied alternative sentencing. This appeal ensued.
A transcript of the nolo contendere proceeding is not included in the record. Ordinarily, this results in a waiver of all sentencing issues. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). However, stipulated facts were set forth in the written plea and were made a part of the record. We believe the record is sufficient to allow for adequate appellate review.
BACKGROUND
On June 25, 1999, the defendant and four of his friends "spent the evening together, partying, and visiting other friends and places in Nashville and Clarksville, Tennessee." Although neither the defendant nor the other surviving passenger has any recollection of the accident, the evidence indicated that the defendant was the driver of the vehicle. The vehicle passed a semi-trailer truck on I-24. The truck driver was exceeding the speed limit and stated the defendant's vehicle "passed him as if he were standing still." The indictment alleges the defendant was driving approximately 100 miles per hour. The defendant's vehicle then proceeded off the road where it struck three separate trees. As a result of the violent impacts, three of the passengers were killed. One of these victims was "cut in half, apparently by the seatbelt."
The presentence report indicates that the twenty-two-year-old defendant has a tenth grade education and sporadic work history. He had two prior DUI convictions and was on probation for one of those convictions at the time of this accident. He also had a history of cocaine use, including the use of cocaine two months prior to the sentencing hearing.
The trial court applied enhancement factor (1), the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1) (1997). Although the defendant contends the trial court applied enhancement factors (8), the defendant has a previous history of unwillingness to comply with conditions of a sentence involving release in the community, and (13), this felony was committed while the defendant was on probation from a prior felony, see id. § 40-35-114(8), (13), we conclude otherwise. After the trial court mentioned their possible application, it then stated: "I could say that 8 and 13 enhancement factors apply, but I believe I'm applying Subsection 1, which is basically the same thing." The trial court also applied mitigating factor 13, any other factor consistent with the purposes of this chapter, because of the defendant's unfortunate childhood. See id. § 40-35-113(13).
STANDARD OF REVIEW
A defendant who challenges his or her sentence has the burden of proving the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court's duty to conduct a de novo review of the record with a presumption the trial court's determinations are correct w
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