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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
Assigned on Briefs January 29, 2013 STATE OF TENNESSEE v. DANNY RAY DUNN
Appeal from the Criminal Court for Hamilton County No. 281254 Rebecca J. Stern, Judge

No. E2012-00677-CCA-R3-CD - Filed March 27, 2013

Appellant, Danny Ray Dunn, entered guilty pleas without recommended sentences to four counts of vehicular assault, one count of reckless aggravated assault, one count of driving under the influence, one count of driving on a revoked license, and one count of violation of the financial responsibility law. Following a sentencing hearing, the trial court sentenced him to an effective twenty-year sentence consisting of five consecutive sentences of four years each for the assaultive offenses; eleven months, twenty-nine days for driving under the influence; six months for driving on a revoked license; and thirty days for violation of the financial responsibility law, to be served in the Tennessee Department of Correction. Appellant challenges the length of his sentences, sentence alignment, denial of a suspended sentence, and denial of his motion to withdraw his guilty plea. Upon our review of the record, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY S. B IVINS, JJ., joined. William Maurice Speek (on appeal); Ardena J. Garth, District Public Defender; and David Barrow, Assistant District Public Defender (at trial), Chattanooga, Tennessee, for the appellant, Danny Ray Dunn. Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; William H. Cox, III, District Attorney General; and Kate Lavery, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. Facts Appellant entered guilty pleas to four counts of vehicular assault and one count each of reckless aggravated assault, driving under the influence, driving on a revoked license, and violation of the financial responsibility law, with the agreement that the trial court would determine the appropriate length of sentence, sentence alignment, and manner of service. At the guilty plea hearing, the State made the following offer of proof: If the State proceeded to trial, the State would show that in Hamilton County, Tennessee, on or about May 20, 2011, at approximately 11:15 p.m.[,] [Chattanooga Police Department] officer[]s responded to a crash on I-24 west[]bound near the Germantown exit. Witnesses state[d] a vehicle driven by the defendant was traveling at a high rate of speed while all the other traffic was slowing to a stop at a construction area. Some witnesses were slowing with their warning flashers on[,] but the defendant was speeding in one lane then moved suddenly into the middle lane and crashed into the back of a Ford Taurus[,] pushing the Taurus into the back of a semi-tractor trailer. The defendant's car slid forward and to the right after the first crash and hit the Taurus a second time. In the Taurus were two adults in the front seat and three children in the back seat. All wore seat belts. The oldest of the children was a female[,] a week away from her [seventeenth] birthday, and two boys were [twelve] and [thirteen] years old. All five people in the Taurus were entrapped. Four were seriously injured, one critically, and one of the five escaped with only needing stitches in his head. At the March 26, 2012 sentencing hearing, Tammy Lusk, the driver of the vehicle and one of the victims, testified. She explained that on May 20, 2011, they were driving on Interstate 24. Their vehicle had slowed to a near stop, and the next thing she recalled was waking up after the crash. At first, she did not know what had happened. She could not breathe, and her children were shouting in the back seat. There was a terrible smell in the air. She eventually realized that they had been in an automobile wreck. Her ex-husband was in the front passenger seat, and he told her that he could not breathe well. Her son and a friend of his were shouting frantically in the back seat. Ms. Lusk attempted to turn her head slightly to try to calm the boys. She called out for her daughter, but her daughter did not answer. At that time, the paramedics arrived. She asked them to attend to her daughter first. She overheard one of the paramedics say that he thought her daughter had a broken neck. -2-

Ms. Lusk did not know if her daughter was still alive. She exited the vehicle with assistance from a paramedic. While they cut the doors off her vehicle in an attempt to extricate her daughter, Ms. Lusk traveled to the hospital in an ambulance with her son's friend. Ms. Lusk stated that she underwent surgery the following morning to place steel rods and plates in her right arm. She also received ten staples in the back of her head. She suffered numerous broken ribs. Ms. Lusk could not go to the bathroom or take a shower by herself for the first few weeks. She missed seven weeks of work and underwent physical therapy for five weeks. Ms. Lusk testified that her daughter's skull was fractured and her brain started to swell when she was in the hospital. Medical personnel told Ms. Lusk that her daughter was in stable condition but nothing more. Her daughter remained in a drug-induced coma for six days. She then had surgery to repair her broken jaw and two surgeries to repair a broken eye socket. Her daughter experienced double vision and some hearing loss. An ear specialist determined that when the skull fracture healed, it sealed off the ear canal. She underwent an additional surgery to remove scar tissue from the area so that her hearing could be restored. She suffered from a residual palsy on the right side of her face. Her daughter was still under medical supervision at the time of the hearing. Ms. Lusk recalled that her son's physical injuries were not as severe. He required stitches in the back of his head. He was released from the hospital on the night of the wreck, but he was frightened to get into a vehicle. He asked his grandparents to pray with him before they drove on the interstate because he was afraid someone would hit them again. The situation was emotionally difficult for her son because his entire family and his friend were all still in the hospital. Ms. Lusk testified that her former husband, Jeffrey Lusk, suffered broken ribs and a collapsed lung. He was hospitalized for four weeks and spent three weeks in the cardiac care unit (CCU). He had to have a tube placed in his lung two different times. He also contracted pneumonia and had blood clots in both lungs. At the time of the hearing, an impending surgery was scheduled for him. Jeffrey Lusk also testified about his recollection of the wreck. He recalled being stopped in traffic and looking around to see if they could change lanes and exit the interstate. His next memory was waking up after the crash. He heard the boys screaming in the back seat. He called out for his daughter, but she did not respond. His son said, "Dad, Lauren's not awake." He attempted to exit the vehicle to walk around and check on his daughter, but as soon as he stepped out, he realized he could not stand up. He suffered eight broken ribs, a punctured lung, and resulting blood clots. Doctors placed a filter in his lungs to prevent -3-

further clotting, and he was scheduled to have that removed a few weeks after the hearing. His employer would only allow him to take a one-month leave of absence, so he lost his job. Eric Farmer, the father of the friend who was in the Lusks' car, testified with regard to his son's injuries. He stated that his son was knocked unconscious from the impact and that his left hip was dislocated. He lost a permanent tooth during the impact and suffered an orbital fracture of the left eye socket that had to be repaired surgically. Mr. Farmer noted that his son was in the hospital for three days but received physical therapy for several weeks thereafter. He read a statement to the court detailing his son's injuries, his and his ex-wife's time away from work, and the lasting effects of the wreck. Appellant testified on his own behalf. He stated that his wife died a couple of months before the car wreck, and he frequently became intoxicated to ease the pain of his loss. He said that it was no excuse for his actions. Appellant recalled the injuries that he suffered in the wreck. Appellant testified that he served in the Marine Corps during the Vietnam War. He had worked as a postal worker for approximately thirty-two years. He and his wife had been together for thirteen years before she died. He also had three adult daughters, grandchildren, and a great-grandchild. Appellant stated that he asked his uncle, who is a preacher, to constantly pray for the family he injured. At the close of the evidence, the trial court found as enhancement factors that appellant had a previous history of criminal behavior in addition to those necessary to establish the appropriate range, that the personal injuries inflicted upon or the damage to property sustained by the victim was particularly great (applied to four of the five victims), that appellant previously failed to comply with the conditions of a sentence involving release into the community, that appellant had no hesitation about committing a crime when the risk to human life was high, and that appellant was on probation at the time of the offenses. Tenn. Code Ann.

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