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State v. Blackhurst8/30/2001
The defendant, Darlene Renee Blackhurst, pled guilty to second offense driving under the influence of an intoxicant ("DUI"), leaving the scene of an accident involving injury, and three counts of reckless aggravated assault. Following a sentencing hearing, the trial court imposed an effective sentence of three years, eleven months, and twenty-nine days, to be served on intensive probation following a mandatory period of 45 days in confinement for the DUI second offense. In this appeal, the State contends that the trial court erred when it placed Defendant on full probation because the trial court failed to properly consider the victim's testimony during the sentencing hearing. Our de novo review reveals that the trial court did err in its application of the law concerning victims' statements and in granting probation for the full time remaining in Defendant's sentence following confinement. However, our conclusion regarding the impropriety of probation is based on sentencing considerations other than the testimony of the victim. Accordingly, we reverse the trial court's judgment regarding the manner of service of Defendant's sentence and remand this matter to the trial court to determine whether Defendant should be incarcerated for the full term of her sentence or, in the alternative, serve the balance of her sentence in split confinement.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed.
Thomas T. Woodall, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and Robert W. Wedemeyer, J., joined.
OPINION
FACTUAL BACKGROUND
At 11:50 p.m. on December 5, 1998, Defendant was traveling in her car down the exit ramp of Interstate 181 toward Lynn Garden Drive when she struck a Honda Passport that was stopped at the traffic light. The Honda contained the driver, Brenda Gardner; her ten-year-old son, Blake Ericson; and her son's twelve-year-old friend, Brooke Shaffer. All three victims suffered "severe bodily injury" as a result of the impact. After colliding with the victims' car, Defendant immediately left the scene. She was subsequently discovered by Kingsport Police Department Officer Samples after she struck a guard rail and mailbox on Hawkins Avenue in Sullivan County later that evening. When Officer Samples arrived at the scene of the second collision, Defendant had a strong odor of alcohol about her person, was unable to stand without support, and did not cooperate with Samples when he attempted to conduct field sobriety tests. Later, Defendant's blood alcohol was determined to be 0.23.
Defendant pled guilty to second offense driving under the influence of an intoxicant ("DUI"), Tenn. Code Ann. § 55-10-401, a Class A misdemeanor; leaving the scene of an accident involving injury, Tenn. Code Ann. § 55-10-103, a Class A misdemeanor; and three counts of reckless aggravated assault, Tenn. Code Ann. § 39-13-102, a Class D felony. Pursuant to the negotiated plea agreement, the trial court imposed concurrent sentences of three years for each of her felony convictions, and concurrent terms of eleven months and twenty-nine days for her two misdemeanor convictions. The felony sentences were then ordered to be served consecutively to the misdemeanor sentences for an effective sentence of three years, eleven months, and twenty-nine days, with a minimum of forty-five days mandatory confinement on the DUI, second offense.
On April 10, 2000, a sentencing hearing was held to determine the manner of service for Defendant's sentence, less the forty-five days for mandatory confinement which Defendant had already served at the time of sentencing. The trial court heard oral testimony from Brenda Gardn
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