### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs S eptember 20, 2000 Session

STATE OF TENNESSEE v. KENNETH RAY JARMAN

Appeal as of Right from the Criminal Court for Montgomery County

No. 40524 John H. Gasaway, III, Judge

No. M1999-01382-CCA-R3-CD - Filed November 17, 2000

The appellant, Kenneth Ray Jarma n, pled guilty in the M

ontgomery County

Criminal Court to one count of driving under the influe nce ( hereinafter “DUI”), fourth offense or over, a class E felony;

one count of driving on a revoked

license, sixth offense, a class A misdemeanor; and one count of violating the open container law, a class C misdemeanor. The trial court sentenced the appellant to two years incarceration in th e Tennessee Department of Correction for the DUI conviction, and imposed a $3000 fine. The trial court also sentenced the appellant to eleven months and twenty-nine days incarceration in the Montgomery County Jail for the driving on a revoked license conviction, and imposed a $350 fine. The trial court further sentenced the appellant to thirty days incarceration in the Montgomery County Jail for the violation of the open container law. Additionally, the trial court ordered the appellant’s sentences to be served concurrently. The appellant raises the following issues for review: (1) whether the enhancing factors applied by the trial court were inap

plicable to this case; and (2) whether the trial court erred in sentencing the appellant to serve the full term of his two-year sentence in

the Tennessee Department of Correction. Upon review of the record and the parties’ briefs , we affirm in par t and modify the judg

ment of the trial c

ourt.

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

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES , and J OE G. R ILEY , JJ., joined.

Collier W. Goodlett, Clarksville, Tennessee, for the appellant, Kenneth Ray Jarman.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General, and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Backgroun

d1 We no te that the jud gmen t incorrectly states that the ap pellant pled guilty to D UI, third offense or over.

However, the judgment clearly shows t hat the appellant

pled guilty t

o a felony, which would be DUI, fourth offense or

over. See Tenn. Code Ann. § 55-10-403 (a)(1)(1997 ). Additi onally, t he trial judge makes ref

erence to t

he appellant pleading guilty to DUI, fourth offense or over.

-2-

On September 6, 1998, Officer John Smith observed the appellant driving erratically

on Highway 48/13 in Montgomery County. T h e appellant’s vehicle repeatedly crossed both the double yellow line and the w hite line. Officer Smith attempted to stop the appellant, but the appellant continued to proc

eed west, weavi

ng and crossing the

center line. Aft

er the appellant

finally stopped his vehicle, Officer Smith app roached him

and noticed the appellant’s bloodshot eyes and

a strong smell of alcohol about the appellant’s person. The appellant moved unsteadily, s

lurred his speech, and only slowly followed Officer Smith’s verbal commands. Moreover, the appellant failed the field sobriety tests administered by Officer Smith. Officer Smith arrested the appel lant for drivin g under the influence, and later discovered an open can of beer in the floorbo ard of th e appellant’s vehicle. Furthermore, the appellant’s driver’s license was in revoked status at the time of the incident.

Subsequently, the appellant ple d guilty in

the Montgomery County Criminal Court to o ne count of driving under th e influence (he

reinafter “DU

I”), fourth off

ense or over, a c

lass E felony; one count of driving on a revoked license, sixth offense, a class A misdemeano r; and one count of violating the open container law, a class C misdemeanor. 1 The trial c o urt sentenced the appellant to two years incarceration in the Tennessee De partme nt of Correction for the DUI conviction, and imposed a $3000 fine. The trial court also se

ntenced the appe

llant to eleven months and t wenty-ni ne days incarceration in the Montgomery County Jail for the driving on a revoked license conviction, and imposed a $350 fine. The trial court further sentenced

the appellant to th

irty days incarceration in the Montgomery County Jail for the vi olat ion of the open container law. Additi onally, the trial court ordered the appellant’s sentences to be served concurrently. The appellant raises the following issues for review: (1) whether the enhancing factors applied by the trial court were inapplicable to this case; and (2) whether the trial court erred in sentencing the appellant to serve the full term of his two-year sentence in the Tennessee Department of Correction.

II. Analysis Appellate review of the manner

of service of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1 997); see also State v. Dowdy , 894 S.W.2d 301, 304 (Tenn. Crim. App. 1994). This court considers the fol low ing f act ors in c ond uct ing i ts d e no vo r evi ew: (1) the evi den ce, i f any, received at the trial and the sentencing hearing; (2) the pre-sentence repor t; (3) the p rin ciples of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidenceand information offered by the parties on enhancement and mitigating factors; (6) an y statement b

y the defen

dant in his own beha

lf; and (7) the pot

entia l fo r rehabilitation or treatm

ent. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also State v. Fletcher
, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). Additionally, if the record reveals that the trial court adequately considered sentencing principles and al

l relevant facts

and circumstanc

es, this court will accord the trial court’s determinations a presumption of correctness. Tenn. Code Ann. §-3-

40-35-401(d); State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). Accordi ngly, the burden is on the appellant to demonstrat e the impro priety of his sentence(s). Tenn. Code Ann. § 40-35-401, Sentencing Commis sion Comments.
A. Improper Enhancement Factors The appellant alleges that the enhancement factors applied by the trial court were inapplicable in this case. However, in his br ief, the appella

nt failed to make a

ny argument or cit

e to any authority in support of his contention. Therefore, the appellant waives this issue. Tenn. R. App. P. 27(a)(7), Tenn. R. Ct. Crim. App. 10 (b); see also State v. Dickerson , 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993).

Regardless

of the waiver, the record reveals that the trial court correctly applied two enhancement

factors to the ap

pellant: (1) the a

ppellant has a

previous history of criminal convictions

or criminal behavio

r in addition to those

necessary to est

ablish the appropr

ia t e range, and (8) the appellan thas a previous hist ory of unwillingne

ss to comply with the c

onditions of a se

ntenc e involving release in the community. Tenn. CodeAnn. § 40-35-114(1997). The record reveals that the appellant has bee

n arrested fifty

-seven times,

resulting in twenty misdemeanor convictions and

one felony conviction. Therefor e, the tr ial court properly applied enhancement factor (1) to the appellant. Additionally, the appellant admitted at the sent encing hearing th at he has previou

sly violated probation. Accordingly, the trial court correctly applied enhancemen t facto r (8) to the appellant. This iss

ue is without merit.

B. Alternative Sentences The appellant also ar g ues that the trial court erred by denying him alternative sentencing and instead ordering him to serve his entire sentence in the Tennessee Dep ar tment of Correction. Initially

we note that although the trial court has discretion in determining the weight to afford eac h enhancement and mitigating factor, “the trial court must preserve in the record the factors it found t o apply and the specific findings of fact upon which it applied the sentencing principles to arrive at the sentence.” State v. Anderson
, 985 S.W.2d 9, 19 (Tenn. Crim. App. 1997). In the instant case,

th e trial court stated that it consi dered the senten

cing principles c

ontained in Tenn. Code Ann. § 40-35- 103 in determining t hat the appellant

is in elig ible for alternative sentencing. However, the trial court did not specifically say how the sentencin

g principles apply

to this appellant. Accordingly, we are unable to determine if the trial court correctly a pplied the sentencing principles. See Ashby , 823 S.W.2d at 168. Therefore, we do not afford

the trial court’s

co nclusion wit h a presumption of correctness. Nevertheless, we affirm the judgment of the trial court.

To determine if the a ppellant is eligible

for an alternat

ive sentence, we

must first establish if the appellant is entitl

ed to the statutory

presumption that he

is a favorable c

andidate for alternative sentencing. State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. at 1996). Tenn. Code Ann. § 40-35-102(1997) provides the guidelines for which offend ers are to be presumed favorable can

didates for alter

native sentence

s:-4-

(5) In recognition that state prison capa c ities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morale of society, and evincing a failure of pas t efforts at reha

bilitation shall b

e given first priori

ty regarding sentencing involving incarceration; and (6) A defendant who does not fall within the parameters of subdivision (5) and is an especially mitig ated or standard

offender convi

cted of a class C,

D or E felony is presumedto be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary. See also State v. Bonestel , 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper , No. M1997-00031- SC-R11-CD, 2000 WL 1 357520, at *6 (Ten n. Crim. App. at Nashville, September 21, 2000). A ccording ly, although alternatives to incarceration are encouraged

for standard or mitigated offenders who have committed C, D , or E felonies, the re is also an intent to incar

cerate those

offenders “whose criminal histories indicate a clear disregard for the laws and morals of soci

ety and a failure of past efforts to rehabilitate.” State v. Chrisman , 885 S.W.2d 834, 840 (Tenn. Crim. App. 1994).

In this case, the app

ellant was convic

ted, as a Range I standard offender, of an E felo ny. Therefore, he meets the first two criteria for a presumption of alternative s entencing

. Howev er, because of the a ppellant’s exten

sive criminal histo

ry, he clearly f

alls within the par

ame ter s of Tenn. Code Ann. § 40

-35-102(5). Acc

ordingly, he is not e

ntitled to the presumption of being a favorable candidate for

alternative sentencing. See Statev. Duff , No. 02C01-9307-CR-00152, 1995 WL 390951, at *4 (Te nn. Crim. App . at Jackson, June 28, 1995); State v. Christian , No. 01C01- 9708-CC-0035, 1998 WL 531850, at *2 (Tenn. Crim. App. at Nashville, August 25,1998).

Regardless,

even if the appellant could be presumed to be a favorable candidate for alternative sentencing, this court has observ

ed that “[t]he pr

esumption can be su

ccessfully rebutted by facts contained in the presentence report, evidence presented by the State, the testimony of the accused or a defense wit

ness, or any other

source provided

it is made a part of the record.” Bonestel
, 871 S.W.2d at 167. Specifically, the following sentencing principles can constitute “evidence to the contrary” to rebut the presumption in favor of alternative sentencing: (A) Confinemen t is necessary to protect society by restraining an [appellant] who has a long history of

criminal conduct; (B) 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 (C) Measures less restrictive than confinement have frequently or recently b ee n applied unsuccessfully to the [appellant]. Tenn. Code Ann. § 40-35-103(1)(1997) ; see also Ashby , 823 S.W.2d at 169; State v. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on oth er grounds by State v. Hooper , No. M1997-00031-SC-R11-CD, 2000 WL 1357520, at *6 (Tenn. Crim. App. at Nashville, September 21, 2000).-5- As we stated earlier, the presentence re port reveals that the ap pellant has been arrested fifty-seven times, and has been convicted of twenty misdemeanors and one felony. This indicates

a long history of criminal conduct. See Fletcher , 805 S.W.2d at 787; State v. Holt , No. 02C01-9809- CC-00272, 1999 WL 148087, at *3 (Tenn. Crim. App. at Jackson, March 19, 1999). Moreover, the appellant has received

suspended senten

ces in the past and

has nevertheles s continued to viola te the law, suggesting that measures less restrictive than confinement have frequently or recently been applied unsuccessfully

to the appellant. See State v. Lilly , No. 03C01-9505-CR-00143, 1996 WL 87441, at *4 (Tenn. Crim. App. at Knoxvi lle, March 1, 1996

); Statev. Sweat , No. 03C01-9708-CC

0348, 1998 WL 707797, at *3 (Tenn. Crim. App. at Knoxville, October 12, 1998). This constitutes sufficient “ev idence to the contrary” to deny the appellant an alternative sentence. See State v. Davis, No. 03C01-9710-CR-00433, 1998 WL 743649, at *2 (Tenn. Crim. App. at Knoxville, October 15, 1998), perm. app. denied (Tenn. 1999).

Al though the appellant did not raise the issue in his brief, we note the t rial c ourt incorrectly sentenced the

appellant to thirty days incarceration in the Montgomery County Jail for violating the open container law. Tenn. Code Ann. § 55- 10-416 (b)(1)(1997) states that “[a] violation of this section is a class C misdemeanor, punishable by fineonly.” Therefore, the trial court had no

a uth ority to sentence the appellant to incarceration for a violation of the open container law. Accordingly, we vacate the appellant’s sentence of incarceration for the violation of Tenn. Code Ann. § 55-10-416(a)(1). Statev. Young , No. M1998-00402-CCA-R3-CD, 1999 WL 117954, at *9 (Tenn. Crim. App. at Nashville, December 15, 1999), perm. app. denied (Tenn. 2000).

III. Conclusion Based upon the foregoing, we affirm the trial court’s denial of alternative sentencing, butwe vacate the appellant’s sentence of incarceration for the violation of

the open container law.

___________________________________ NORMA McGEE OGLE, JUDGE