# FILED

August 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9707-CC-00292 Appellee, * BLOUNT COUN TY VS. * Hon. D. Kelly Thom as, Jr., Judge GAIL PELL, * (DUI, Second Offense, Appellant. * Driving on Rev oked License)

For Appellant : For Appellee : Mack Garner John Knox Walkup District Public Defender Attorney General and Repor ter 419 High Street Maryville, TN 37804 Ellen H. Pollack (at trial) Assistant Attorney Gener al 425 Fifth Avenue North Julie A. Martin, Attorn ey Nashville, TN 37243 P.O. Box 426 Knoxville, TN 37901-0426 Philip Morton (on appeal) Assistant District A ttorney General 363 Court Street Maryville, TN 37804

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE1 The defendant's name is al so spelled " Gale" Pell throughout the record. 2 OPINION The defendant, Gail Pell, 1 was convicted of dri ving while under

the influence of an intoxicant, seco nd offense, and driving on a rev oked license. The trial court imposed a sentenc e of eleven months and twenty -nine days, suspending all but on e hundre d twenty da ys, for dri ving under the infl uence an d ordered a sixmonth concurrent sentence, with all suspended except for two days, for driv ing on a revoked license. The balanc e of each sentence was to be ser ved on supervised probation. Five months l ater, probation was rev oked and the defendant was ordered to serve her sentence in jail at seventy -five percent.
In this ap peal of r ight, the defend ant claim s that the trial cour t erred by requiring sevent

y-five percent of her sent ence to be served.
We affirm the judgment of the trial court.
On February 5, 1997, the defendant entered guilty pleas on each of the two charges. Later that same day, before she report ed to jail to start serv

ing the sentence, the defendant drank six beers. Afterward, she w as stopped by police as she was driving from her boyfriend's residence. As the officer began his investigation, the defendant, who had no operator's li cense, was "overw helmed by fright and dr

ove off." The de

fendant had mari

juana in her

possession

at the time and had smoked marijuana whil e visiting her boy friend. The defendant admitted that she was intoxic

ated. Shortly thereafter, s he entered a guilty ple a in the Blount County General Sessions Court and received an additional sentence of one hundred twenty days. By the time of the probation r evocation hearing on Jul y 3, 1997, the defendant had been incarcerated al most five months.3 The trial court concluded that the defendant had violated the terms of her probation and ordered her to serve the eleven-month, twenty-nine-day sentence with a seventy-

five percent release eli gibility, "whi ch means basically nine months." The defendant was given cr edit for the time she had serv ed in jail and was decl ared eligible to partici pate in work progra ms to earn sentence credits. Although it was unknown whether inpati ent treatment would be avai lable, the trial judge indicated that he would allow "s

ome of this nine months in an inpatient treatment" program. The sentence was allowed to be served concurrentl y with that ordered in the general sessions court.

The defendant concedes that the trial co urt did not abuse its discr etion by revoking her probation but takes issue w ith the length of her jail sentence. She argues that "doubling her actual time of incarceration as a result of her subsequent conviction was ex

cessive and erroneous." She contends that the nine-month sentence "is not the least sev ere measure ... in order to a chieve sentencing purposes."
When a challenge is made to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d).

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's4 potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210. State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles, purposes, and goals of the Cr iminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an authorized determinant sent ence with a percentage of tha t sentence designated for eligibility for rehabilitative prog rams. Generally, a per centage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Palmer , 902 S.W.2d at 393-94. In de termining the percentage of the sentence, the court m ust consider enhancement and mitigat ing factors as well as the legislative purposes and principles related to se ntencing. Id.

Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to direct ing supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . The misdemeanant, unlike the5 felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

Obviously, the tri al court did not abuse its di scretion by revoki ng probation. The minimum period of incar ceration was one hundred tw enty days; the maximum possible sentence w as eleven months, twenty -nine days. Tenn. Code Ann. § 55-10-403(a)(1). In our view, an ove rriding sentencing consideration is that confinement is necessary to av oid depreciating the ser iousness of the offense; moreover, other less r

estrictive measures hav e been unsuccessful. Tenn. Code Ann. § 40-35-103(1)(B), and (C). Given the defendant's prior criminal hist

ory and her failure to take advantage of opportunities at rehab ilitation, a lengthy term in jail is warranted. The sentence impos ed by the trial court w

as more than fair to the defendant under the entire circumst ances of the case.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________ Joseph M. Tipto n, Judge

_____________________________ David H. Welles, Judge