IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 28, 2004

STATE OF TENNESSEE v. TERRY WAYNE PERKINS

Appeal from the Criminal Court for Campbell County

No. 11652 E. Shane Sexton, Judge

No. E2003-02885-CCA-R3-CD - Filed August 17, 2004

The appellant, Terry Wayne Perkins, was indicted on charges of driving under the influence, fourth

offense, operating a motor vehicle after being declared an habitual motor vehicle offender, violation

of the implied consent law, and driving on a revoked license. He was acquitted of the D.U.I. charge.

A jury convicted him of violation of the implied consent law and driving on a revoked license. He

was sentenced to an 11- month-and-29-day sentence at 75% for the violation of the implied consent

law and six months at 75% for the driving on a revoked license conviction. The two sentences were

ordered to run concurrently and the trial court ordered the appellant to serve 15 days of the sentence

in the county jail, after which he would be released on probation, and assessed a $100 fine for each

conviction. On appeal, the appellant challenges the trial court’s decision to order him to serve 15

days in jail. For the following reasons, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, and JAMES

CURWOOD WITT, JR., JJ., joined.

Steve McEwen, Mountain City, Tennessee, for the appellant Terry W. Perkins.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;

William Paul Phillips, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney

General, for the appellant, State of Tennessee.
A transcript of the trial does not appear in the record on appeal. 1

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OPINION

Factual Background

According to the affidavit of complaint filed by the arresting officer:1

On 2-17-03 affiant [a police officer with the LaFollette Police Department] observed

. . . [the appellant] traveling east on East Central Avenue at 14 Street traveling 66 th

mph in a 40 mph zone. Affiant stopped the vehicle on Foothill Drive. The above

defendant was found to be HMVO [habitual motor vehicle offender] and have

revoked license. The defendant also stated that he had drank [sic] 3 or 4 beers and

admitted to taking oxycottons [sic]. The defendant was given sobriety tests which

he failed. The defendant was read the implied consent law which he refused. The

defendant was arrested and transported to CCSD for booking. The defendant had

two prior DUI when checked thru NCIC. 

The appellant was subsequently indicted by the Campbell County Grand Jury on charges of

driving under the influence, fourth offense, operating a motor vehicle after being declared an habitual

motor vehicle offender, violation of the implied consent law, and driving on a revoked license. The

indictment listed three prior DUI offenses in 1993, 1997, and 1999, all occurring in Campbell

County. 

After a jury trial, the appellant was convicted of violation of the implied consent law and

driving on a revoked license. He was acquitted of the D.U.I. charge. A separate sentencing hearing

was held on November 7, 2003. At the sentencing hearing, the trial court inquired about the

appellant’s habitual motor vehicle offender status. Evidently, at the time of the offense, the appellant

did not realize that he had been declared an habitual motor vehicle offender. The appellant related

to the court that he had not been employed since he had a spinal fusion 16 months prior to the

hearing. He receives approximately $405 a month in social security benefits. The appellant also told

the court that while he has a vehicle, he does not drive it because the tags are expired and the fuel

pump is broken. 

At the conclusion of the hearing, the trial court explained the sentence as follows:

So, let’s make sure everyone understands what I’ve done. In count three, 11/29 at 75

percent with a hundred dollar fine plus Court costs, count four, six months at 75

percent with a hundred dollar fine, concurrent with count three, and that sentence will

be for an effective one 11/29; 15 days of that is unsuspended - - will be served; the

report date, December the 7th. 
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Further, the trial court agreed to allow the appellant to serve the first five days of the sentence

consecutively, then allowed the appellant to serve the remaining ten days on weekends.

Subsequently, the appellant filed a timely notice of appeal. 

Sentencing

On appeal, the appellant argues that the trial court erred by ordering him to serve 15 days of

his effective 11 month, 29 day sentence in the county jail. Specifically, he contends that the sentence

should be reduced to five days because the trial court did not make specific findings on the record

as to the enhancement and mitigating factors in determining the appropriate confinement. Further,

he argues that because he is “disabled due to a severe back injury, and due to the non-serious nature

of the convictions” a sentence of 15 days is “unduly harsh and unjustly deserved in relation to the

seriousness of the offense.” The State counters that the misdemeanor sentence is “consistent with

statutory sentencing purposes and should be affirmed by this Court.” 

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review

on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §

40-35-401(d). “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 conducting our review, we must consider the defendant’s potential for

rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing

principles, sentencing alternative arguments, the nature and character of the offense, the enhancing

and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);

Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of

demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,

which provides in part that the trial court shall impose a specific sentence consistent with the

purposes and principles of the 1989 Criminal Sentencing Reform Act. See Tenn. Code Ann. § 40-

35-302(b). Misdemeanor sentencing is designed to provide the trial court with continuing

jurisdiction and a great deal of flexibility. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn.

1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One convicted of a

misdemeanor, unlike one convicted of a felony, is not entitled to a presumptive sentence. See State

v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). 

In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the court is

required to provide the defendant with a reasonable opportunity to be heard as to the length and

manner of service of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the

authority to place the defendant on probation either immediately or after a time of periodic or

continuous confinement. Tenn. Code Ann. § 40-35-302(e). In determining the percentage of the
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sentence to be served in actual confinement, the court must consider the principles of sentencing and

the appropriate enhancement and mitigating factors, and the court must not impose such percentages

arbitrarily. Tenn. Code Ann. § 40-35-302(d).

At the conclusion of the sentencing hearing, the trial court did not make any findings of fact

on the record. The Tennessee Supreme Court has stated that in misdemeanor sentencing the trial

court did need not make specific findings of fact on the record, so long as it appears the trial judge

considered the principles of sentencing in the code and applicable enhancement or mitigating factors.

Tenn. Code Ann. § 40-35-302(d); Troutman, 979 S.W.2d at 274; State v. Russell, 10 S.W.3d 270,

278 (Tenn. Crim. App. 1999). 

In the case herein, the appellant was convicted of a violation of the implied consent law.

Under Tennessee Code Annotated section 55-10-406(a)(3), if the court or jury finds that the driver

violated the provisions of the statute while driving on a revoked, canceled or suspended license

because of a prior DUI, then such driver commits a Class A misdemeanor and shall be sentenced to

a minimum mandatory jail or workhouse sentence of five days. The five day sentence must be

served consecutively, day for day, and cannot be suspended. Tenn. Code Ann. 55-10-406(a)(3). In

the case herein, the appellant’s license had been suspended because of a prior DUI. Thus, the

mandatory minimum period of incarceration was five days. The trial court chose to extend that

sentence by ten days. Even though the trial court failed to state the reasons for the additional ten

days of incarceration on the record, we conclude that the appellant has failed to demonstrate that the

sentence was improper. Given that the trial court could have required the appellant to serve 75% of

his entire 11 month, 29 day sentence in confinement, see Tenn. Code Ann. § 40-35-302(b), we

cannot conclude that an additional ten days is an “unduly harsh” or “unjustly deserved” sentence.

Accordingly, we conclude that the trial judge did not exceed the “wide latitude of flexibility”

afforded him in misdemeanor sentencing and that ordering the defendant to serve fifteen days is

consistent with the principles of the sentencing act.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. 

___________________________________ 

JERRY L. SMITH, JUDGE