IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 23, 2010 Session

STATE OF TENNESSEE v. BENJAMIN RANDOLPH HUBARD

Appeal from the Criminal Court for Sevier County

No. AP-09-025 Rex Henry Ogle, Judge

No. E2010-00999-CCA-R3-CD - Filed March 3, 2011

The Defendant, Benjamin Randolph Hubard, pled guilty to driving under the influence

(DUI), first offense, a Class A misdemeanor, and violation of the implied consent law. The

trial court merged the convictions and sentenced the Defendant to 11 months and 29 days

with 100 percent service of his sentence. The trial court also ordered the Defendant to pay

a $350 fine, complete DUI school, and to perform 24 hours of community service in the form

of litter removal. In this appeal as of right, the Defendant contends (1) that the trial court

erred in setting the length of his sentence and (2) that the trial court erred in ordering the

additional penalties. Following our review, we conclude that the trial court erred in ordering

the Defendant to complete DUI school and to perform 24 hours of community service. The

judgment of the trial court is affirmed in part and reversed in part. The case is remanded.

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

in Part; Reversed in Part; Case Remanded.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID H. WELLES,

and JAMES CURWOOD WITT, JR., JJ., joined.

Benjamin S. Burton, Sevierville, Tennessee, for the appellant, Benjamin Randolph Hubard.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; James B. Dunn, District Attorney General; and Gregory C. Eshbaugh,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant originally pled guilty to DUI, first offense and violation of the implied

consent law in the Sevier County General Sessions Court and received a sentence of 11
months and 29 days with 120 days to serve. The Defendant appealed that sentence to the

Sevier County Circuit Court, where he again pled guilty to DUI, first offense and violation

of the implied consent law. The State submitted that had this case gone to trial, the State

would have proven that on May 26, 2009, the Defendant was found sitting in his vehicle with

his keys in the ignition when he dropped an alcoholic beverage out of the vehicle’s open

door. The State also submitted that while the Defendant had been charged with DUI, first

offense, the Defendant had two prior DUI convictions - one in 2002 and one in 2004 - and

had been declared a motor vehicle habitual offender (MVHO). The State admitted that the

MVHO conviction had not been sent to the Tennessee Department of Safety at the time of

sentencing but that it planned on submitting the documentation after the hearing.

The Defendant’s mother testified that the Defendant cared for her and her sister. She

stated that the Defendant drove them places and that he was supposed to drive her to her

doctor’s appointment that afternoon. She stated that the Defendant had spent approximately

six weeks in a halfway house in Oak Ridge; that he had stayed for one night at a

rehabilitation center in Cocke County; and that he had attempted to procure employment.

The Defendant testified that he had contacted the Tennessee Department of Safety about his

MVHO conviction and was told that his license was valid. The Defendant submitted that the

court should consider his long work history, his attempts at rehabilitation, and the fact that

there was no bodily injury as a result of the offense as mitigating factors when sentencing

him.

After considering the evidence submitted at the hearing, the trial court ordered the

Defendant to serve 11 months and 29 days and set the percentage of service at 100 percent.

The trial court also revoked the Defendant’s license for one year and ordered the Defendant

to pay a $350 fine, complete DUI repeat offender school, and perform 24 hours of

community service in the litter pickup program. In so ordering, the trial court admitted that

the Defendant had “accomplished some good things in [his] life” but found that the

Defendant had repeatedly violated the conditions of his prior MVHO conviction by

continuing to drive and that the Defendant had an “extensive record.” See Tenn. Code Ann.

§ 40-35-114(1). The trial court also found that the Defendant’s testimony about the MVHO

conviction was not credible.

ANALYSIS

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

302, which provides that the trial court shall impose a specific sentence consistent with the

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

40-35-302(b). Misdemeanorsentencing 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

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

misdemeanor sentencing, the trial court retains the authority to place the defendant on

probation either immediately or after a time of periodic or continuous confinement. See

Tenn. Code Ann. § 40-35-302(e)(1)-(2). The trial court is required to set a percentage of the

sentence that the defendant mustserve before becoming eligible for certain release programs.

Tenn. Code Ann. § 40-35-302(d). Such percentage must not be more than 75 percent. Id.

However, in cases where a defendant is convicted of a DUI, the trial court may set the

percentage of service at 100 percent. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995)

(stating that the trial court may order a defendant to serve the entirety of his sentence if the

resulting sentence comports with the principles and purposes of the sentencing act).

Appellate review of misdemeanor sentencing is de novo with a presumption of

correctness even if the trial court failed to make specific findings on the record. Troutman,

979 S.W.2d at 274. In sentencing a defendant, the “trial court need only consider the

principles of sentencing and enhancement and mitigating factors in order to comply with the

legislative mandates of misdemeanor sentencing.” Id.

I. Length of sentence

The Defendant contends that the trial court improperly ordered him to serve the

entirety of hissentence because the trial court erroneously considered an enhancement factor,

his MVHO conviction, and failed to consider his proposed mitigating factors. The State

responds that the trial court considered the necessary factors and principles when sentencing

the Defendant. The State further responds that the Defendant has failed to prove that his

sentence was excessive given his previous DUI convictions, his status as an MVHO, his

drinking problem, and his refusal to stop driving.

The record reflects that the trial court gave ample consideration to the purposes and

principles of the sentencing act in determining the Defendant’s sentence and that the trial

court considered all of the proposed mitigating and enhancement factors. The trial court

gave great weight to the Defendant’s prior convictions and repeated refusal to comply with

the conditions of his MVHO status. Because the presentence report was not included in the

record on appeal, we presume the trial court’s application of the prior convictions and

criminal behavior enhancement factor was supported by sufficient evidence. See State v.

Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Following our review, we conclude

that the record supports the trial court’s sentencing decision. Accordingly, we also conclude

that because the resulting sentence comports with the principles and purposes of the

sentencing act, the trial court did not err in setting the percentage of service or the length of

the Defendant’s sentence.

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II. Additional Penalties

The Defendant contends that the trial court’s imposition of the fine, DUI school, and

community service wasimproper when he received the maximum penalty for his convictions;

he claims the remaining penalties were in excess of the statutory maximum penalty allowed.

The State responds that Tennessee Code Annotated sections 55-10-403(a)(1)(A)(i) and

(c)(1)(A)(i) mandate a fine of at least $350 and completion of DUI school. The State also

responds that the Defendant has failed to prove that he is incapable of completing the ordered

24 hours of litter pickup.

The Defendant was convicted of DUI, first offense and sentenced pursuant to

Tennessee Code Annotated section 55-10-403. The statute states, in pertinent part, that those

convicted of DUI, first offense shall “be fined not less than three hundred fifty dollars ($350)

nor more than one thousand five hundred dollars ($1,500).” Tenn. Code Ann. § 55-10-403

(a)(1)(A)(i). Thus, the trial court’s imposition of a $350 fine was proper in this case.

As to the trial court’s ordering the Defendant to complete DUI school, Tennessee

Code Annotated section 55-10-403(c)(1)(A)(i) mandates the completion of DUI school as

a condition of probation. However, the Defendant was ordered to serve the entirety of his

sentence; thus, he will never be released to probation. Because the Defendant pled guilty to

DUI, first offense, the trial court was also not authorized to order the completion of a “court

approved alcohol or drug treatment program” pursuant to Tennessee Code Annotated section

55-10-403(a)(1)(A)(iv). Accordingly, we conclude that the trial court erred in ordering the

Defendant to complete DUI school.

Similarly, the trial court’s ordering the Defendant to complete 24 hours of community

service in the form of litter removal was improper. We acknowledge that in addition to the

service of the sentence prescribed by the trial court and the imposition of a fine, the court

may also order a defendant to “remove litter from the state highway system, public

playgrounds, public parks or other appropriate locations for any prescribed period.” Tenn.

Code Ann. § 55-10-403(a)(1)(A)(vii). However, imposition of this additional penalty is only

warranted after the Defendant has served the minimum of his sentence “day for day.” Tenn.

Code Ann. § 55-10-403(a)(1)(A)(vii). While litter removal is an appropriate condition of

probation pursuant to Tennessee Code Annotated section 55-10-403(s), the Defendant will

not be released to probation because he was ordered to serve the entirety of his sentence.

Accordingly, we also conclude that the trial court erred in ordering the Defendant to

complete 24 hours of community service in the form of litter removal.

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CONCLUSION

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed in part and reversed in part. The case is remanded for the trial court to

redact the portion of the judgment ordering the Defendant to complete DUI school and to

perform 24 hours of community service. Additionally, the trial court is directed to correct

the judgment form, which incorrectly reflects that the Defendant received an alternative

sentence of 11 months and 29 days of probation.

________________________________

D. KELLY THOMAS, JR., JUDGE

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