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State v. Keathly5/21/2003
ldn't say and call her a liar to the Court, she, it wasn't that way, how could she be close enough to him, she wasn't within ten feet, to smell this stuff, to smell this alcohol on him. He's not taken responsibility, even went so far as to say the victim in this case lied.
The trial court's reliance on the Appellant's testimony in fashioning his sentence was impermissible. Before imposition of his sentence, the Appellant should have been permitted to make an unsworn statement to the court without having been subjected to rigorous cross-examination. Accordingly, we conclude, as plain error, that the Appellant was denied his statutory right of allocution and, therefore, his sentence must be vacated and remanded for a new sentencing hearing.
II. Sentencing
For instructional purposes upon remand, we proceed to examine the length and manner of service of the Appellant's sentence. When an accused challenges the length, range, or the manner of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." Ashby, 823 S.W.2d at 169. When conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210 (1997); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant to sentencing must be established by a preponderance of the evidence and not beyond a reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997)).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact that are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W4.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial court fails to comply with the statutory provisions of sentencing, appellate review is de novo without a presumption of correctness.
A. Length
The Appellant contends that "the trial court erroneously relied upon inappropriate enhancement factors and thus the sentence of four years is excessive." Because the Appellant is a range I standard offender, the range of punishment for vehicular assault, a class D felony, is "not less than two (2) years nor more than four (4) years." Tenn. Code Ann. § 40-35-112(a)(4) (1997). Furthermore, the presumptive sentence would be the minimum sentence in that range if there are no enhancing or mitigating factors present. Tenn. Code Ann. § 40-35-210(c). If there are both enhancing and mitigating factors present, the trial court must "enhance the sentence within the range as appropriate for the enhancement factors, then reduce the sentence within the range as appropriate for the mitigating factors." Tenn. Code Ann. § 40-35-
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