# FILED
February 17, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CR IMINAL APPEALS OF T ENNESSEE

AT KNOXVILLE DECEMBER SESSION, 1998

STATE OF TENNESSEE, ) ) No. 03C01-9803-CR-00098 Appellee ) ) CARTER COUNTY vs. ) ) Hon. ARDEN L. HILL, Judge TIMOTHY WAYNE REEC E, ) ) (Driving Under the Influence, Appellant ) First Offense)

For the Appellant : For the Appellee : Michael D. Kellum John Knox Walkup Attorney for Appellant Attorney General and Reporter 1114 Sunset Drive, Suite 3 Johnson City, TN 37604 R. Stephen Jobe Assistant Attorney General Criminal Justice D ivision (AT TRIAL) 425 Fifth Avenue North Thomas W. Cowan, Jr. 2d Floor, Cordell Hul l Building Attorney at Law Nashville, TN 37243-0493 111 S. Main Street Elizabethton, TN 37643 Joe C. Crumley, Jr. District Attorney Gener al Kenneth Baldwin Asst. District Attor

ney General 900 East Elk Avenue Elizabethton, TN 37643

OPINION FILED: AFFIRMED

David G. Hayes Judge2 OPINION

The appellant, Timothy Wa yne Reece, pled guilty in the Carter County Criminal Court to fi rst offense driving under the influence on October 8, 1997. The trial court imposed a s

entence of eleven months and twent y-nine days, suspended except for eighty-six day s in jail and subject to w ork release after servi ng forty-eight hours. The appellant now appeal s the sentencing decision of the trial court.

After review, we affir

m the decision of the tria l court.

Background

Facts developed at the preli minary hearing held on Apr il 4, 1997, revealed that, on December 31, 1996, the appe llant attended a New Year’s Eve celebration with some friends. Alc ohol was served at the party and the appellant drank three or four beers. At approximat ely 11:30 p.m., the appellant, accompanied by Andy DeLoach and Tabitha Turner, dr ove his 1983 Dodge Ramcharger to a Raceway convenience store to purchase gasoline. Carol Tolley , the cashier at the station, noticed that the appellant did not appear to be acting “normal .” Specifically, she observed that the appellant had attempted to pay for the same gasoline purchase twice, that he had let the gasol ine overflow from his tank, and, finally, he drov e away from the pump with the gas nozzle still attached to hi s tank. Eventually, the appellant and his two companions returned to the party.

The party started breaking up around 12:30 a.m. and the appellant left to take Tabitha Turner home. Aware of the appellant’s condition, others at the party, including Andy DeLoach, advised the appellant not to drive. Ignoring these warnings, the appellant chose to drive Tabitha home and pr oceeded north on3

Highway 91. Sometime aft er 1:00 a.m., the appellant’s vehicle collided with

the vehicle driven by thir

ty-five year old Carey

Calhoun. The appellant later registered a .16 blood alcohol content. Car ey Calhoun, who had just gotten off work prior to the accident, tested negative for the presence of alcohol. She l ater died at the hospital as a result of injuries

sustained in the accident. S ubsequently, the appellant was charged with vehicular homicide. This charge was later dismissed at the preliminary hearing in General Sessions Court and, in May 1997, the G rand Jury indicted the appellant on one count of drivi ng under the influence.

Officer Rusty Verran, a certified accident rec onstructionist with the Elizabethton Police Departm ent, examined the accident sc ene. In his opinion, the appellant was traveling nor thbound with his headlights on at approximately 39.77 miles per hour in a fif

ty mile an hour speed zone. The accident occurred in the appellant’s lane of traffic when the vehicle operated by C arey Calhoun pulled out into the roadway in front of the appellant. Specificall y, Verran could not determi ne whether Ms. Calhoun had stoppe d at the stop sign, but he could c onclude that the “approximate cause of this collision . . . was her

action in failing to yi eld right of way to th[e] [appellant’s] oncomi ng vehicle.” Because he was unable to determine the speed of Ms. Calhoun’s vehi cle, Officer Verran coul d not state whether the appellant’s alcohol consum ption played a part in the accident, i.e. , whether the appellant’s intoxication i mpacted his reaction tim e thus preventing him from avoiding the collision.

On October 8, 1997, the appellant e ntered a guilty plea to fir st offense DUI. A sentencing hearing was conduc ted that same day. The proof at the sentencing hearing revealed that, at the ti me of the accident, the appella nt was a twenty-one year old high school graduate with no prior criminal record. He is employed at J.W. Windows Components as the supervisor on the second shift. In addition to this employment, the appellant is a Lance Corporal in the Uni ted States Marine Corps4

Reserves and is a contrac t worker for the Northea st Tennessee Correctional Academy, Boys Group Home, in Johnson City. Although th e appellant denied that he was drunk at the time of the accident and denied personal responsibility for the accident, he admitted that he felt the grief of the victim’s family. The appellant also stated that this event had signi ficant impact on his life.

Before imposing sentence, the trial court stated his disbelief of the ap pellant’s assertion that he “had only three beers “ despite his bl ood alcohol content of .16. The court also found: So, here we’ve got one involv ing death and .16 . . . alcohol. True he might have been able to go on and tak e his girlfriend home and get back home without causing an accident, and it might have b een the victim’s fault. It might have been both their fault. We’ll never know if the alcohol that Mr. Reece had ingested kept him from reacting fast enough or stopping. There’s many accidents been avoided that’s called defensive driving, even if it’s not your fault. You can avoid some wrecks when it would hav e been the other person’s fault and saved some lives. Here we w ill never know. And, M r. Reece if he does remember would not know because alcohol has a way of m aking one believe that he’s driving alright, that’s he’s dr

iving within the speed limit, that he can react. But, alcohol not only slow s down your reaction time, but, it slows dow

n your ability to determ ine whether you’re able to drive or not. . . . Based on these findings, the trial court sentenced the ap pellant to eleven months, twenty nine days; suspended with the exception of eight y-six days to be served in jail subject to work release after service of forty-eight hours.

Analysis

The appellant contends that the tr ial court imposed an exces sive sentence for his conviction. Specifically, the appellant argues that the trial court improperly considered the death of the Carey Calhoun in determining the a ppellant’s incarcerated portion of his sentence. In addressing the appe llant’s challenge, we are mindful that our de novo review is conditioned w ith the presumption that the1 A DUI offender, unlike ot her misdemeanor off enders, can be sent

enced to serve t he entire sen tence im posed , or 100%

. State v. Pal mer , 902 S.W.2d 391, 393-94 (T enn. 1995). Compare Tenn. C ode An n. 40-35 -302(d) (1996 S upp.) (m aximu m perc entage is 75% ). 5 sentencing determination of the trial court is cor rect. See Tenn. Code Ann. § 40- 35-401(d) (1997). Moreov er, the appellant bears the bur den of establishing the sentence imposed by the tria l court is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).

Again, the appellant pled guilt y to driving under the infl uence, first offense, a class A misdemeanor. See Tenn. Code Ann. § 55-10-401 and § 55-10-403(m) (1996 Supp.). Our legislature has provided that a defendan t convicted of first offense DUI “shall be confined . . . for not less than forty-eight hours nor m ore than eleven months and twenty-nin e days.” Tenn. Code Ann. § 55- 10-403(a)(1). Furthermore, “all per

sons sentenced under subsection (a) shall, in addition t o the service of at least the minimum sentence, be required to serve the difference between the time actually s erved and the maximum sent ence on probation.” Tenn. Code Ann. § 55-10-403(c). Thus, the length of a defenda nt’s sentence for a first offense DUI is eleven months, twenty nine days. See generally State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998). In effect, the DUI statute m andates a maximum sentence for a DUI convic tion with the only function of the trial court being to determine what period above the minimum period of i ncarceration established by statute, if any, is to be sus pended. 1 See Troutman , 979 S.W.2d at 273; State v. Combs , 945 S.W.2d 770, 774 (Tenn. Cr im. App. 1996), perm. to appeal denied , (Tenn. 1997); State v. Brice , No. 03C01-9605-CC-00189 ( Tenn. Crim. App. at Knoxville, Dec. 3, 1996). Thus, the trial court’ s imposition of a sentence of eleven months, twenty-nine days i s mandated by our legislatur e and is not improper.

The sentencing court must also determine the percentage of the sentence which the defendant shall ser ve. Tenn. Code Ann. § 40-35-302( d). Upon service of2 In State v. Tr outman , 979 S.W.2d at 273, our supreme cour t recognizedthat th e misdemeanor sentenci ng provisi ons contained i n the 1989 Sentenci ng Act do not re quire that the trial court ho ld a sente ncing he aring, see Tenn. Code Ann. § 40-35 -302 (1996 Supp.) , do not require t hat the t rial co urt place its fi ndings on the r ecord, and do not

require t hat a presente nce report be prepare d, see Sentencing Commissi on Comments, Tenn. Code Ann. § 40-3 5-302; Tenn. Code An n. § 40-35-302(a)(1996). 6 that percentage, the administrative agency governing th e rehabilitative programs determines which among the lawful programs avail able is appropriate. In determining the percentage of the sentence, the trial court must consider enhancement and mitigating fac tors as well as the legi slative purposes and principles related to se ntencing. See Troutman , 979 S.W.2d at 273-74; State v. Warren , No. 01C01-0905-CC-00218 ( Tenn. Crim. App. at Nashv ille, May 21, 1997) (citing Tenn. Code Ann. § 40- 35-302(d); State v. Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995)). In observanc e of the less stringent proc edures attached to misdemeanor sentencing, 2 upon de novo review, we cannot conclu de that the trial court’s grant of release eligibility followi ng a period of forty-eight ho urs confinement was arbitrarily im posed. See Troutman , 979 S.W.2d at 274.

Finally, the trial c

ourt retains the authority to place the defendant on probation either immedia tely or after a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The statutory scheme is designed to provide the trial court with conti nuing jurisdiction in t he misdemeanor case and a wi de latitude of flexibility. Additio nally, we observe that the m isdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829, 832 (Tenn.Crim.App.1994) . Thus, we are confronted w ith the propriety of a sentence of eighty-six days confinement.

In the present case, it is clear from the record that the trial court consi dered the death of Carey Calhoun in i mposing the appellant’s sente nce. It is also clear from the record that the appel lant’s intoxication was not the proximate cause of th e accident, and, thus, the victi m’s death could not be consid ered as an enhancement7

factor. See Brice , No. 03C01-9605-CC-00189; State v. Andrews , No. 02C01-9201- CC-00024 (Tenn. Crim.App. at Jackson, Jan. 20, 1993). Accordingly, it was error for the court to consider C alhoun’s death in imposing s entence.

Notwithstanding the trial court’s error in cons idering the victim’s death, the record supports the trial court’s concerns of the appellant’s lack of candor r egarding his level of intoxication. Additionally, the record reflects the appellant’s awarene ss of his impaired state at the time he elected to drive under the influence and the appellant’s disregard of t he safety of Tabitha Turner, the passenger in his vehicle. The trial court imposed a sentence of confinement of eighty-six days when it could have extended confinement to elev en months, twenty-nine days, as there is no presumptive minimum

sentence in misdemeanor s entencing. Although the appellant has an admirable employment history and no prior criminal history, we cannot conclude that the sentence i mposed by the trial court was improper. Accordingly, the sentence i mposed by the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

_________________________________ JERRY L. SMITH, Judge

_________________________________ JAMES CURWOOD WIT T, JR., Judge