### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ja nuary 24, 200 6
STATE OF TENNESS EE v . MICHAE L KENNE TH SI SCO
Appeal f romthe Circ uit Court for Warre n Coun ty No. M- 9323 Larry B. Stanley, Jr., Judge

No. M2005- 01774-CCA -R3-C D - April 7, 2006

A Warre n CountyCircuit Court jury convicted the defe ndant, Michae l Kenneth Sisco, o f driving
un de r the inf

lue nc e (D UI ), se c on d o ff

e ns e , a Cla ss A mis de me a no r, a nd the tr ia l c ou rt se nte nc e d h im to eleven months and twe nty -nine da y s with six ty day s to serve in c onfinement a nd the balanc e on probation. On a

ppeal, the de fenda nt contends that the e vidence is insufficient, t h at t h e t ri al court
e rr e d in a ll o w in g th e te s ti mo n y o f a r e b u tt a l w it n e s s , a n d th a t th e tria l c o u r t e rr e d in s e n te n c in g

. We
a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and J AM ES C UR WO OD W I TT , J R ., J ., joined.

L isa Z avog iannis, McMinnville, Tennessee , for the a ppellant, Michae l Kenneth Sisco.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l and Re port e r; Sop hia S. L e e , A ssi sta nt A tto rn e y Ge ne ra l; Clement Dale Potter, District At t o rn ey Gene ral; and L arry G. B ry ant, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION
At the trial, Warre n CountySheriff’ s Deputy J esse Reid testified that he had been a sheriff ’s deputy and an instructor on DUI detec tion a nd enfor ceme nt f or fourtee n y ear s in F lorida b efore becoming a sheriff’s de puty in Warren County . He testified that he was working a shift from 5:30 p.m. to 6:30 a.m. on J uly 19, 2002, and that a f

ew minutes bef

ore 9:00 p.m., a BO L O (“ b e on the loo ko ut” ) w a s is su e d f

or a n o lde r m od e l or a ng e a ndwh ite F or d pic ku p truc k. He sa id that sh ortly afte r hea ring the B OL O he sa w the truck on Hig hway 55. He sa id the truck turne d onto Todd L ane, e nte re d the Cou ntry Clu b Ma rk e t’ s pa rking lot , a nd pa

rk e d b loc kin g pa

rt of the dr ive way . H e sa id he pu lle d b ehi nd the truc k, wa lke d to the drive r’ s si de do or , a ndsa w o nly the de fe nd a nt s itt ing in the truck.-2-

Deputy Reid said the def

endant had bloodshot ey es, flushed c heeks, a n odor of a lcohol on his person, and a

ppear ed to be intoxi cate d. He said he a sked the de fenda nt to ge t out of the truck. He sa id the defe ndant was unsteady on his f eet and g rabbe d the bed of the truck a

couple of

times wh ile wa lki ng to the re ar o f the truc k. He sa id tha t he a sk e d the d efen dan t to pe rf or m th re e fi e ld sobriety tests and that the def

endant pe rformed unsatisfac torily on all of the tests. He said he place d the d ef en d an t u nder a

rre st for driving under the influence , transporte d him to the county jail, and asked him to submit to a breatha ly zer test. He said the def endant r efuse d to submit to the test and signe d the implied consent form acknowle dg ing suc h.

On cro s s -e x amination, Deputy Reid acknow ledg ed he did not see the def endant “ wea ving or doi ng anything erratic.” He acknowledg ed the Country Club Marke t’s parking lot did not have marke d parking space s. He said he rec eived the BO L O at 8:57 p.m. and pulled behind the de fenda nt at 8:58 p.m. He ac knowledg ed that the B OL O was for a red a nd white truck a nd that the def endant’ s truck wa s orang e and w hite. He sa id he did not see a ny open or e mpty

alcoh o l container s in the truck. He acknow ledg ed he c ould not tell f rom the smell of alcohol what the defe ndant dra nk, how much he dr ank, or w hen he had something to drink. He a cknowledg ed that bloodshot ey es and r ed
c he e ks c ou ld b e c a us e d b y oth e r thin g s a ndthat h e di d not a sk the de fe nd a nt a

bo ut a ny of tho se things. He said the def

endant told him he had not had any thing to drink. He said that the par king lot wa s pa ve d a nd lig hte d a ndthat no de br is w a s p re se nt t o in te rf e re wi th the de fe nd a nt’ s a bil ity to perf orm the tests. He a cknowledg ed that n o l i n e existed for the de fenda nt to follow when he pe rf or me d the he e l to toe te st. He sa id tha t th e de fe nd a nt w a s f a c ing tow ardwh e re the su n w ou ld
se t bu t th a t th e su n ha d alr e a dy se t tha t day

. He sa id i t w a s a bo ut f orty -f ive min ute s f

ro m th e tim e he pulled behind the de fenda nt until t he time they left the pa

rking lot.
Troy Haston t estified that the defendant was working for him on J uly 19, 2002, and that they worke d from about 5:00 a.m. until ar ound noon. He said that it wa s hot that day and that they had been la y ing shing les on a house. He sa id he and his employ ees w ent to lunch at Pizz a Hut, and the defe ndant had a

couple of

beer s with his meal. He said they left P i z z a Hut around 1:30 p.m. and went to his house. He sa id the defe ndant l eft his house a round 3:00 p.m. and wa s g oing to g ive another employ ee, E d L owery , a ride to Mr. L owery ’s son’s house. He said that the def endant wa s “fine ” whe n the def

endant lef t his house but that the defe ndant’s fac e would g et “r eal r ed” w hen he
was o u t i n t h e sun. On c ross-examination, Mr. Haston ac knowledg ed that he did not see the de fe nd a nt a g a in tha t day

a ft e r he le ft his ho us e aro un d 3:00 or 3:3 0 p .m a ndthat he didno t kn ow if the de fe nd a nt h a d anythi ng to d ri nk a ft e r h e le ft

. Th e de fe nd a nt te sti fi e d that on July 19 , 20 02 , he wo ke up aro un d 3 :00 or 3:3 0 a .m. , b e c a us e he wa s working on a construc tion j o b i n C o o k evil le. He sa id that they completed the job a

round noon and that it was hot. He said that eve ry body he worke d with w ent to lunc h and that he had two beer s. He said he went to Mr. Ha ston’s to unload equipment and lef t around 3:30 or 4:00 p.m. He said that Mr. L owery

left with him a nd that he was g oing to ta ke Mr. L owery

to Mr. L owery ’s son’s house. He said Mr. L owery was not a witness in the case beca use he was unable to loc ate him. He said that afte r lea ving Mr

. Haston’s, they stopped at t he C ountry Club Marke t because Mr. L owery wanted to g et cig are ttes. He said that they did no t s t o p an y wh er e else and that they arrived at the-3-

mark e t aro un d 5 :30 p. m. H e sa id h e pu lle d in to the Cou ntry Clu b Mar ke t, wa ite d in the truc k w hil e Mr. L owery

ran into the store , and wa s not blocking a ny of the g as pumps.
The de fenda nt testified that he had the windows down in his truck bec ause he did not have
a ir c on dit ion ing a ndthat O ff ic e r R e id w a lke d u p to him a nda sk e d if

he ha d b e e n d ri nk ing . He sa id he tol d Of

fi c e r Re id he ha d c on su me d a fe w b e e rs a t lu nc h. He sa id O ff ic e r R e id d id n ot t e ll h im that his chee ks were red but that his cheeks pr obably wer e re d beca

use he ha d a skin condition that
cause d his skin to t urn whit e an d b u rn ea s ily . He sa id the sun was in his ey es whe n he wa s perf orming the field sobriety tests. He said he believed he was able to perf orm all of t he tests. He said Offic er Reid put him in t he bac k of the pa trol car , and they waited a bout thirtyminutes to one ho ur fo r a tow ing se rv ic e to tow the de fe nd a nt’ s truc k. He sa id that Mr

. L ow e ry wa s e ith e r s til l in the store at the time or that his son had picked him up. He said that it was dar k when they

arrived
a t th e po lic e de pa

rt me nt.

On cr oss-examination, the defendant acknowle dg ed that base d on the timeline he g ave a bout the eve nts, he would have been rele ased from the jail around 8:00 p.m., when it still would have bee n light outside. He said he did not see Office r Reid pull into the parking lot. He ac knowledg ed that if he only had two bee rs at 1:00 p.m. that there would have been no problem taking the bre athaly zer test, but he said he did not submit to t he test bec ause he did not trust Officer Reid.

Tina R owland, a 9-1-1 dispatcher and a rebuttal witness for the sta te, testified that she took a call from the Country Club Marke t on J uly 19, 2002, and that she ha d the ca ll log shee t showing the di spatch was made at 8:57 p.m. On cross-examination, Ms. Rowland acknow ledg ed the dispatc h was for an older red a nd white pickup truc k.
Upon re quest of the state and the de fenda nt, the trial court took judicial notice of the fac t that the sun set at 7:57 p.m. on J uly 19, 2002, acc ording to the Old Fa rmer’ s Almanac . The state a nd the defe ndant stipulated that if the jury returne d a g uiltyverdic t it would be a sec ond offe nse DUI

. The jury found the de fenda nt guilty of DUI

.
At the s e n te n c in g h e ar in g , th e d e f e n d a n t t e s ti f

ie d th a t h e w a s e mp lo y e d a t a “ meat manufa cturing ” compa ny and had w orked the re a lmost t wo y ear s. He said he wa s the supervisor a nd had made arr ang ements to be a ble to serve his tim e and keep his job, but not if he went to jail that day

. He said he wanted to g o to r ehabilitation for the la st part of his sentenc e. He asked the court to allow him to serve his sentenc e on we ekends. H e said he had not had a ny other DU I s since 1996. Th e tr ia l cou rt se nte nc e d the de fe nd a nt to ele ve n months a ndtw e nty -n ine da y s in the War re n Co un ty jail with six ty

day s to serve in c onfinement a nd the balanc e on probation.
On appe al, the def

endant c ontends the evidence is insufficient. He c ontends the trial court
e rr e d in a llo wi ng the te sti mon y of a wi tne ss that the state fa ile d to dis c los e or lis t on the ind ic tme nt. He c ontends the trial court erre d in sentencing him to si x ty day s without s t at i n g o n t h e record the
rea sons for enha ncing his sentence . The state r esponds t h e ev i dence was suff icient to sustain the defe ndant’s convic tion for DUI

. I t a sserts the trial court did not err in allowing the testimony of the-4-

s t a t e ’ s r e b u t t a l w i t n e s s o r ab u s e i t s d i s c r e t i o n i n s e n t e n c i n g t h e d e f e n d a n t t o s i xt y

da y s in confine ment.

I. SUFF ICIENCY OF THE E VIDENCE

The de fenda nt contends the state pr esente d insufficient e vide n c e at t h e tr ia l that the defe ndant drove or was in control of

a motor vehic le on a pub l i c ro ad way , highw ay , or par king lot. The defe ndant asserts the evidenc e s h o wed that Mr. L owery was in the truc k with the appellant. The defe ndant asserts Office r Reid neve r saw the defe ndant drive the vehicle or be in possession of the truck’s key s. He a sserts there was no testimony that the truck w as running or that it was ca pable of moving unde r its own power . The state c ontends th at u nder the totalityof the c ircumstance s, the evidenc e wa s sufficient to esta blish the defen d ant drove and wa s in phy sical control of his truck. The state a sserts Off

icer Reid followed the defenda nt from Hig hway 55 into the parking lot of the Country Club Market. The sta te asserts the defe ndant’s own testimony establishes that he dr ove the truck into the par

king lot. I t asserts that the defendant offere d no evidenc e that someone else was driving

. Our standa

rd of r eview w hen the de fe n d ant questi ons the sufficie ncy of the e vidence on app e a l is “ w h e th e r , a f

te r v ie w in g th e e v id e n c e in th e li g h t mo s t f a v o r ab le to th e p r o s ecution, any
ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7 , 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the evidenc e; ra ther, we presume that the jury has re solved all conflicts in t he testimony and dra wn all rea sonable infe renc es fr om the evidenc e in favor of t he st ate. See S tate v. S heff ield, 676 S.W .2d 542, 5 4 7 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cre dibilit y

wer e re solved by the j ury

. See S tate v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

.
Te nn e sse e Cod e An no ta te d s e c tio n 5 5- 10 -4 01 state s in pe rt ine nt p art : (a) I t is unlawful for a ny

person to drive or to be in phy sical control of a ny a uto mob ile or oth e r m oto r d ri ve n v e hic le on a ny of the pu bli c ro a ds a ndhig hw a y s o f the state , o r o n a ny str e e ts o r a lle y s, or

wh ile on the premises of any shopping center , trailer park or any apartment house complex, or any other premises which is ge nera lly fre quented by the pu bli c a t la

rg e , w hil e : (1 ) U n d e r t h e i n fl u en ce o f a n y i n t o x i ca n t , m ar i

j u an a, n ar co t i c d ru g, or drug producing stimul ating eff ects on the c entra l nervous sy stem

. . . .
At the t rial, Officer

Reid testified that he spotted the de fenda nt’s truck on Hig hway 55 and that he sa w the de fe nd a nt tur n o n to To ddL a ne a ndint o th e pa rking lot a t th e Cou ntry

Clu b M ark e t. Offic er Reid state d he pulled in behind the truc k, approa ched the driver’ s side of the truc k, and saw
on ly the de fe nd a nt ins ide the truc k. Of fi c e r Re id te sti fi e d tha t the de fe nd a nt’ s e y e s w e re blo od sh ot, his face was re d, and he sme lled of alc ohol. Office r R eid asked the defendant to leave his truck a nd-5-

sa w the de fe nd a nt wa s un ste a dy on his fe e t. Of fi c e r R e id a sk e d th e de fe nd a nt t o p e rf or m th re e fi e ld sobriety tests and allowed the defe ndant t o attempt the tests sever al times, howeve r the de fenda nt pe rf or me d u ns a tis fa c torily

on e a c h te st. Th e de fe nd a nt r e fu se d to su bmi t to a brea th a ly zer te st. Additionally , the def

endant testified that he was taking Mr . L owery home and at no time did he testify that he wa s not driving the tr uck. We conc lude that a r ational juror c ould have f ound bey ond
a re asonable doubt that the defe ndant was driving his truck w hile under the influence of alc ohol. The defe ndant is not entitled to relief on this issue.

II. RE BU TTA L WI TN ESS

The de fenda nt contends the trial c ourt err ed in allowing the testimony of Ms. Rowland, the 9-1-1 ope rator, a s a re buttal witness. The def endant a sserts Ms. Rowland should have be en ca lled in the state ’s c a se -i n- c hie f. Th e state a sse rt s th e tr ia l c ou rt did no t e rr in a llo wi ng Ms. Row la ndto testify as a rebuttal witness. The state a sserts Ms. Rowland’s testimony contra dicted the de fenda nt’s testimo ny that he a tte mpt e d th e fi e ld s ob ri e ty te sts be fo re su ns e t. T he state a sse rt s th a t Ms

. Rowland’s testimony

was limited to contradicting the def en d ant’s testi mony

and that it was not require d to disclose the witness’s name to the defe ndant in advanc e.

Re bu tta l e vid e nc e inc lud e s “ [a]n y c ompet e nt e vid e nc e wh ic h e xpla ins or is i n d ir e c t r e ply to, or a contra diction of

, materia l e vidence introduced by the ac cused.” Nea se v. State, 592 S.W.2d 327, 331 (Tenn. Crim. App. 1979) . Rebuttal evidenc e must be re levant and material to the fa cts at issue. State v

. Lunati, 665 S.W .2d 739, 747 (Tenn. Crim. App. 1983) . A def endant’ s discovery reque st for name s of the state’s witnesses does not inc lude rebuttal witnesses. See State v. Tee l, 793 S.W .2d 236 , 2 4 6 (Tenn. 1990) , superse ded by statute as stated in State v. Reid, 91 S.W.3d 247 (T e nn . 2 00 2) . T he state ’s du ty to d isc los e the na me s o f wit ne sse s is di re c tory , n ot m a nd a tory . St a te v. Delling er, 79 S.W.3d 458, 48 9 (T en n

. 2002). The a dmissibi lityof re buttal evidence lies in the trial court’ s discretion and w ill not be overturne d on appea l unle ss there ha s been a clea r abuse of discretion. I d. at 488.

Of fi cer Reid testified that he sa w the def endant a nd initiated contact with the de fenda nt shortly befor e 9:00 p.m. The de fenda nt then testified on his direct e x amination t h at the sun was setting a nd was in his ey es while he was a ttempting the f ield sobriety tests. He also testified tha t he
arrived at the Country

Club Mar ket around 5:30 p.m. I n order to r ebut the def endant’ s testimonythat he ar rived at the marke t before sunset and that the sun wa s in his ey es whe n he wa s perf orming the field sobriety

tests, the state called Ms. Rowla nd as a witness. The state a sked Ms. Rowland wher e she wa s employ ed, if she w as able to locate r ecor ds from the e vening of Jul y 19, 2002, if the log sheets we re ke pt in the normal course of business, if she located a c all from the Country Club Marke t, and what the time of dispatch wa s. Ms. Rowland testified t he dis patch tim e was 8:57 p.m., which contr adicts the de fenda nt’s testimonyon direc t examination about the timing of the e vents and about t he sun being in his ey es. I t was not until afte r t he defenda nt testified t hat the state kne w that the tim ing of

the e ve nts wo uldbe a n issu e in this c a se . We c on c lud e that th e tr ia l c ou rt didno t a bu se its discretion in allowing Ms. Rowland’s testimony and that the defe ndant is not entitled to relief on this iss ue.W e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y ame n ded T en n es s ee Code An n ot at ed s ec t i on s 40- 35- 102, 1
-2 1 0 , an d -4 0 1 . S e e 2 0 0 5 T e n n

. P u b

. A c ts c h

. 3 5 3 , § § 1 , 6 , 8

. H o w e v e r, the a m e n d e d c o d e se c tio n s a re ina p p lica b le to the d e fen d a n t’s ap p e a l.
-6- III. SE NTENCING

T h e d e f e n d a n tc o n t e n d s t h e t r i a l c o u r t e rr e d b y i m p o s i n g a n ar b i t r ar y s e n t e n c e o f

s i x t y d a ys instead of the minimum forty -five day sentenc e for second offense DUI

. The defenda nt asserts the trial court did not state what, if any , enhanc ement or mitig ating fac tors exis ted. The state contends the trial court corre ctly

sentenc ed the de fenda nt to six ty day s in confinement. The state asse rts DUI misdemeanors a

re c ontrolled by

Tenne ssee Code A nnotated sec tion 55-10-403. The state asserts the trial court state d that it sentence d the defe ndant upon consideration of all the appropriate sente ncing pr inc ipl e s a ndg uid e lin e s. Th e state a lso a sse rt s tha t eve n thou g h the tr ia l c ou rt wa s n ot r e qu ir e d to pu t on the re c or d th e fa c tor s it us e d to det e rm ine the de fe nd a nt’ s se nte nc e , th e tr ia l c ou rt of fe re d to gra n t the defe ndant a r e-se ntencing hearing but that the de fenda nt did not acce pt the trial court’ s offe r, thus waiving the issue.
Appellate r eview of

sentenc ing is de novo on the re cord w ith a presumpt i o n that the trial court’s de terminations are corr ect. T.C.A. § 40-35-401( d). As the Sentenc ing Commission 1 Comments to this section not e, the bur den is now on the a ppealing party

to show that the sentenc ing is improper. This means that if the trial court followed the statutory sentenc ing pr ocedur e, made finding s of fac t that a

re adequately supported in the rec ord, and g ave due consideration and proper
we ig ht t o th e fa c tor s a ndpr inc ipl e s th a t are re le va nt t o s e nte nc ing un de r the 19 89 Se nte nc ing Ac t, we may no t disturb the sentence even if a diffe rent re sult were pr efe rre d. State v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. Also, in conducting a de novo revie w, we must c onsider (1) the evidenc e, if a ny , rec eived at the trial and se ntencing hearing, ( 2) the pre sentenc e re port, (3) the principles of se nten ci n g and
arg ume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the na tur e a ndc ha ra c te ri sti c s o f the c ri min a l c on du c t, (5) a ny mitigating or st atutory enhanc ement factors, (6) any statement t hat t he defenda nt made on his own behalf, a nd (7) the pote ntial for re habilit at i o n o r t reatment. T.C.A. §§ 40-35-102, -103, -210; see State v. Ashby , 823 S.W .2d 166, 168 (Tenn. 1991) ; State v. Moss, 727 S .W.2d 229, 236-37 (Tenn. 1986)

. A def endant c onvict ed o f a misdemeanor is not entitled to the presumption of a minimum sentenc e. State v. Creasy , 885 S.W .2d 829, 832 (Tenn. Crim. App. 1994). Moreove r, misdemeanor sentenc es do not contain ra ng es o f p u n i s h m ents, and a misdemeana nt may

be sente nced to the maxi mum term provided for the offe nse as long as the sente nce imposed is consistent with the purposes of the sentenc ing a ct. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). Our statutory sy stem c o n c e r n in g mi s d e me a n o r s e n te n c in g is d e s ig n e d to p r o v id e tria l c o u r ts w ith c o n ti n uing jurisdiction and a g reat deal of f l ex i b i l i t y . See T.C.A. § 40-35- 302(d), Sentenc ing Commission Comments; S tate v. B oy d, 925 S.W .2d 237, 244 (Tenn. Crim. App. 1995)

.-7-

With re g ardto D UI

of fe ns e s, Te nn e sse e Cod e An no ta te d s e c tio n 5 5-10- 40 3(a)(1 ) s e ts mandat o ry m i n i m u m periods for c onfinement de pending on whether the offe nse is a first or subsequent o ffense, and subse ction (m) provide s, “Nothing in . . . the Sentencing Reform Ac t of 1989[] shall be construe d as altering, a mending or dec rea sing the penalties established in this sec tion f o r t h e o f f e n s e o f d r i v i n g u n d e r

t h e i n f l u e n c e o f a n i n t o x i c a n t

. ” T

. C

. A

. § 5 5

- 1 0

- 4 0 3 ( m )

. In
a dd re ssi ng if

DU I of fe nd e rs mus t be se nte nc e d in a c c or da nc e wi th the se nte nc ing a c t, ou r s up re me c ou rt no te d th a t

th e le g is latu r e h a s s p e c if ic a ll y e xc lu d e d D U I

o f f e n d e r s f r o m the pr ov isi on s o f the Ac t whe n th e app lic a tio n o f the Ac t w ou ld s e rv e to either a lter, ame nd, or dec rea se the spec ific pena lties provided for DU I of fe nd e rs . A tr ia l ju dg e ma y de sig na te a servi c e pe rc e nta g e in a DUI case under Te nnessee Code Annotated Sec tion 40-35-302(d) but that perc entag e may not opera te to reduc e the mandatory minimum sentenc ing pr ovisions of the DUI statute.
Palmer, 902 S.W.2d at 394. A DUI offe nder c an be se ntence d to serve the maxi mum punishm ent for the of fense so long a s the imp o s i tion of that sentence is in accor dance with the principles and purposes of the Criminal Sentencing Reform Ac t of 1989. I d.

The defe n d an t co ntends that the trial court erre d by failing to adher e to the misdemea nor se nte nc ing g uid e lin e s in Te nn e sse e Co de Annota te d s e c tio n 4 0- 35 -3 02 (d ), wh ic h p ro vid e s in pe rt ine nt p art :

I n i m p o s i n g a m i s d em ea n o r s en t en ce , t h e co u rt s h al l fi x a p er ce n t age

of the sente nce w hich the defe ndant shall serve [i n confine ment]. . . . I n determining the pe rce ntag e of the sentenc e to be se rved in a ctual confine ment, the court shall consider the purposes of this cha pter, the principles of se ntencing , and the enhanc ement and miti g ating fac tors set fo rth in this chapter, a nd shall not impose such perc entag es arbitra rily

. See T.C.A. § 40-35- 302(d).

At the sentenc ing he aring , the trial court stated

I have considere d all of t he proof prese nted at the t rial, as well as the te s ti mo n y h e r e to d a y , a n d s tate me n ts o f c o u n s e l, in ma

k in g the determination as to the s entenc e. .

. . He will serve six ty (60) da y s of that s e n te n c e w ith th e b a la n c e o n p r o b a ti o n

. . . . I d o n ’ t h a v e any rea son to believe that [the defe ndant] is an alcoholic. I think this was just a bad dec ision.-8-

At t h e motion for a ne w trial, the trial c ourt stated that it did consider the pur poses of the sentenc ing g uidelines reg arding enhanc ement and mitig ating fa ctors althoug h it “may not have place d that on the re cord.” The trial court tol d the defendant, “I ’ll g rant y ou a re-sente ncing hearing
on that if y ou wi ll le t me kn ow wi thi n f ive da y s. ” Th e de fe ns e c ou ns e l to ld the tr ia l c ou rt , “ I wi ll ask my client.” There is nothing in the record to ref lect that the defenda nt acc epted the trial court’s offe r to have a new hearing a nd have the trial court’ s findings o f t h e en h ancement and mitigating fa ctors plac ed in the re cord. Relief is not available to a pa

rty “who f ailed to take w hateve r ac tion
w a s r e a s o n ab ly

a v a il ab le to p r e v e n t o r

n u ll if y th e h ar mf

u l e f f e c t o f th e e rr o r

. ” T

. R. A

. P. 3 6 ( a )

. We conclude the defe ndant has waived this issue for failing to r equest the re- sentenc ing he aring that the trial court of

fer ed to conduc t.

CO NC LU SION

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE