State v. Danny Lynn Porter ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 11, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9811-CR-00393
)
) Roane County
v. )
) Honorable E. Eugene Eblen, Judge
)
DANNY LYNN PORTER, ) (Vehicular homicide due to recklessness and
) reckless endangerment)
Appellant. )
For the Appellant: For the Appellee:
Walter B. Johnson Paul G. Summers
Assistant Public Defender Attorney General of Tennessee
Post Office Box 334 and
Kingston, TN 37748-0334 Elizabeth B. Marney
(AT TRIAL) Assistant Attorney General of Tennessee
425 Fifth Avenue North
Joe Walker Nashville, TN 37243
Public Defender
and J. Scott McCluen
Alfred Lee Hathcock, Jr. District Attorney General
Assistant Public Defender and
Post Office Box 334 Frank Harvey
Harriman, Tennessee 37748 Assistant District Attorney
(ON APPEAL) Post Office Box 703
Kingston, TN 37763
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Danny Lynn Porter, pled guilty in the Roane County
Criminal Court to vehicular homicide due to recklessness, a Class C felony, and to
reckless endangerment, a Class E felony, with the sentences to be determined by the
trial court. The court sentenced him as a Range I, standard offender to concurrent
sentences of three years and one year respectively to be served in the Department of
Correction. In this appeal as of right, the defendant contends that he should not have
been sentenced to incarceration. We affirm the sentence imposed by the trial court.
The juvenile court transferred the defendant, who was seventeen years
old at the time of the offense, to the Roane County Criminal Court to be tried as an
adult. At the transfer hearing, Trooper Carlton Haley testified that on September 8,
1996, he was dispatched to the scene of a single vehicle accident. He said that a
pickup truck had hit an embankment and overturned on its side, killing one occupant,
Aaron Johnston, and injuring three others. He said he found the defendant in a nearby
ditch, the defendant smelled of alcohol, and the defendant’s speech was slurred and
sometimes incoherent. He admitted that he could not tell if the odor of alcohol came
from the defendant’s breath or his body and that the slurred and incoherent speech
could have resulted from injuries sustained in the accident. He testified that the blood
alcohol content of the deceased victim was .19 percent.
Christy Crowe testified that on September 8, 1996, the victim drove her,
the defendant, and another girl to Rockwood, Tennessee in his truck. She said the
defendant had a big bottle of whiskey with him, which he finished in the hour before
they left. She said that she took one drink of the whiskey but spat it out because she
did not like it. She said she did not know if anyone else drank from the bottle. She
stated that Mr. Johnston felt sick, but she did not know if he was drunk. She said Mr.
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Johnston said that he was able to drive, but the defendant had the keys. She said the
defendant drove while Mr. Johnston sat in the passenger’s seat, she rode between
them, and two others rode in the truck bed.
The record reflects that the defendant had been adjudged delinquent on
three prior occasions: for underage consumption on May 7, 1996; for the unauthorized
use of a vehicle on May 7, 1996; and for theft of a vehicle on July 2, 1996. Julie Trent
testified that she was the defendant’s counselor and case manager at Mountain View
Youth Development Center. She said that the defendant had been in her unit for six
weeks and had received no negative disciplinary reports. She stated that his behavior
was exceptional and that he was pursuing his GED. She said that Dr. Pinella of
Cherokee Mental Health Systems evaluated the defendant and determined that the
defendant had an I.Q. of 82. She said Dr. Pinella recommended that the defendant
participate in a twelve-step substance abuse treatment program and receive individual
and group counseling to address the loss of his best friend and his feelings of guilt
arising from that death. On cross-examination, Ms. Trent testified that the defendant
had previously been placed in youth facilities on three occasions and that he was in the
community on a weekend pass from one of these facilities when the accident occurred.
The presentence report reveals that the defendant dropped out of high
school after completing the tenth grade. He was employed at Miles Hardwood and
earned six dollars per hour. His employment history consists of two jobs in the fast food
industry and a job as a general laborer, none lasting longer than four months. The
report reveals that the defendant is unmarried and has a young daughter for whom he
owes child support in the amount of $183.75 per month. The defendant was arrested
for assault after his release on bond for the present offense. The report reveals that the
then nineteen-year-old defendant said he started drinking alcohol at age fifteen and that
he presently drank an occasional beer. He said he used cocaine for a brief period and
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used marijuana regularly between ages thirteen and eighteen. He stated that he last
used marijuana two months earlier. The report shows that the father of the deceased
victim opposed probation and requested that the defendant be incarcerated for the
maximum sentence.
The defendant initially contends that our review of his sentence should be
de novo without a presumption of correctness because the trial court failed to make the
requisite factual findings. Appellate review of sentencing is de novo on the record with
a presumption that the trial court's determinations are correct. Tenn. Code Ann. § 40-
35-401(d). As the Sentencing Commission Comments to this section note, the burden
is now on the defendant to show that the sentence is improper. This means that if the
trial court followed the statutory sentencing procedure, made findings of fact that are
adequately supported in the record, and gave due consideration and proper weight to
the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the trial
court's action 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 this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
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State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995). In the present case, the state did
not seek enhancement, and the defendant filed notice of two mitigating factors pursuant
to Tenn. Code Ann. § 40-35-113:
(6) The defendant, because of youth . . ., lacked substantial
judgment in committing the offense; [and]
(11) The defendant, although guilty of the crime, committed the
offense under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal
conduct.
The trial court did not comment on the defendant’s mitigating factors but simply
imposed the minimum sentence on each count and made the following remark
regarding the manner of service:
And from the totality of the situation, with the involvement of
alcohol, and where he had been and where he was at that
time, the Court feels that’s a sentence that needs to be served.
We believe that this brief comment fails to meet the requirements of Tenn. Code Ann.
§ 40-35-210(f), requiring us to review the sentence de novo without the presumption of
correctness.
In conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The defendant challenges the manner of service of his sentences. As a
Range I, standard offender convicted of Class C and Class E felonies, the defendant
correctly asserts that he is presumed to be a favorable candidate for alternative
sentencing options. See Tenn. Code Ann. § 40-35-102(6). The presumption in favor of
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alternative sentencing may be rebutted if (1) “confinement is necessary to protect
society by restraining the defendant who has a long history of criminal conduct,” (2)
“confinement is necessary to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to others likely to
commit similar offenses,” or (3) “measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the defendant.” Tenn. Code Ann.
§ 40-35-103(1)(A)-(C); see Ashby, 823 S.W.2d at 169. Furthermore, the defendant’s
potential for rehabilitation or lack thereof should be examined when determining
whether an alternative sentence is appropriate. Tenn. Code Ann. § 40-35-103(5).
The defendant argues that his age at the time of the offense, the fact that
his juvenile record consists solely of nonviolent offenses, and his amenability to
rehabilitation as evidenced by his progress at Mountain View Youth Development
Center all indicate the appropriateness of an alternative sentence. We believe the fact
that the defendant was on a weekend pass from state custody at the time of the
accident and the defendant’s history of substance abuse reveal a reduced potential for
rehabilitation in the community. Ms. Crowe testified that she saw the defendant drink a
bottle of whiskey just before the accident. The defendant was seventeen years old and
on leave from state custody at the time. The defendant had been adjudged delinquent
for underage drinking just four months before the present offenses. The defendant
admitted that at age nineteen, he drank an occasional beer and that he used marijuana
regularly after the offenses. The defendant made these admissions after the juvenile
court transferred his case to the Roane County Criminal Court and he was released on
bond. Thus, the defendant’s substance abuse continued even after, and in spite of, his
reported good progress in the Mountain View Youth Development Center. The fact that
the defendant made such progress at Mountain View indicates his need for a structured
environment as is provided by the Department of Correction. We affirm the trial court’s
sentence of incarceration.
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In consideration of the foregoing and the record as a whole, we affirm the
judgment of conviction.
__________________________
Joseph M. Tipton, Judge
CONCUR:
________________________
John Everett W illiams, Judge
________________________
Alan E. Glenn, Judge
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