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State v. Barnett3/31/1999
The Defendant, Billy Gene Barnett, appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted, upon his pleas of guilty, of two counts of reckless aggravated assault, Class D felonies, one count of second-offense DUI, and one count of failure to yield the right-of-way. Although the record contains neither a copy of the plea agreement nor a transcript of the guilty plea proceeding, it appears that the Defendant agreed to serve two concurrent three-year sentences as a Range I standard offender for the two Class D felonies. The manner of service of the sentences was left to the discretion of the trial Judge. After conducting a sentencing hearing, the trial Judge ordered that the Defendant serve 325 days in the county jail in conjunction with four years on probation. The Defendant appeals from the sentences imposed, arguing primarily that the 325 days ordered to be served in confinement is excessive. We affirm the judgment of the trial court.
When an accused challenges the length, range, or 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). 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." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence 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 defendant made; and (g) the potential or lack of potential for rehabilitation or treatment. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings of fact 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.W.2d 785, 789 (Tenn. Crim. App. 1991).
The basic facts gleaned from this record are that the Defendant played in a golf tournament on June 29, 1996. After the tournament, he attended a luncheon and drank some beer. As he was driving home, he approached a car and a motorcycle stopped behind a farm vehicle attempting to make a left turn. The Defendant was unable to stop his vehicle and struck the motorcycle, knocking it into the car behind the farm vehicle. The two individuals on the motorcycle were seriously injured. The Defendant performed unsatisfactorily on three field sobriety tests. Approximately four hours after the accident, the Defendant's blood/alcohol content registered .09 percent.
At the time of sentencing, the Defendant was fifty-one years old and married with two adult children. The Defendant dropped out of school during the eleventh grade. He apparently is a skilled welder, and his employment history is good. The Defendant's record includes two speeding violations. In addition, he has two prior convictions for DUI: one in 1979 in Carter County and one in 1994 in Sullivan County. In the presentence report, the Defendant reportedly stated that at the time of
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