# FILED

September 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR

T OF CRIMIN AL APPEALS OF TENN ESSEE AT NASHVILLE OCTOBER 1996 SES SION

STATE OF TENNESSEE, ) No. 01C01-9601- CR-00034 ) Appellee ) ) WILSON COUN TY V. ) ) HON. J. O. BOND, RICHARD E. NELSON, ) JUDGE ) Appellant. ) (Sente ncing) ) ) For the Appell ant: For the Appell ee: Stephen W. Pate Charles W. Burson 218 W. Main Street Attorney Gen eral and Repor ter Murfreesboro, TN 37130 (On appeal) Kare n M. Ya cuzzo James H. Flood Assistant Attorney Gener al 122 Public Square 450 James Roberts on Parkway Lebanon, TN 37087 Nashvil le, TN 37243-0493 (At trial) Tom P. Thom pson, Jr. Distric t Attorney General Robert N. H ibbett Assistant D istrict A

ttorney 111 Cherry

Street Lebanon, TN 37087

OPINION FILE D: ___________________

AFFIRMED AS MODIFIED

W illiam M. B arker, Ju dge2 OPINION The appellant, Ri chard E. Nel son, appeals the s entences he recei ved follow ing guilty verdicts by a Wilson County jury for the offenses of drivi ng under the i nfluence, fifth offense; driving on a revoked license, th ird offense; and ev ading arre st. The trial court sentenced the appellant to e leven months, twenty- nine days tobe served at one hundred (100%) percent for his convicti ons for DUI and d riving on a revoked license. Those sentences were ordered to be served consecutivel y. He w as sentenced to a concurrent sentence of six months upon his conviction for evading arrest. Appellant’s license was suspended for thr ee years and he was fined $1, 110. On appeal, the appel lant arguesthat he wasentitled to a s eparate sentenci ng hearing following hi s convic tions for these mi sdemeanor sentencesand that the tri al

cour t erre d in o rder ing co nsec utive sent enci ng. W e af firm the c onse cuti ve sentencing, but modify the appel lant’s sentence for drivi ng on a revoked license to reflect that he s erve a max imum seventy -five perc ent of that sentence. On December 23, 19 94, a police officer observed t he appellant si tting behind the wheel of a C hevrolet C orvet automobi le at the Thirs ty Turtle i n Lebanon. Moments later, the car disappeared. In thre e to four minutes, ho wever, two other police officers obse rved t he sa me ve hicle spee ding. The a ppe llan t was o bser ved by t hose two officers trav elling s ixty- five miles an hour in a forty mile per hour

speed zone. Both officers gave chase attemp ting to stop the appellant. Appe llant accelerated his vehic le to a spe ed exc eed ing ni nety m iles p er ho ur. T he ap pell ant d rove t o a Da ys Inn motel, exi ted his vehi cle, and ran tohis room. When the police officer s confronted the appellant, the y noticed t hat he had a strong odor of alcohol ab out him, was unsteady on hi s feet, had slurr ed speech, and his

eyes were bloodshot and red. The appellant refused to take a blood al cohol test. Ba sed upon the foregoi ng evidence, the jury convicted the appellant of dri ving under the influence, fifth offense; dr iving on a revoked l icense, thir

d offense; and evading arrest.3 After the jury

was dis charged, the trial cour t immediately

sentenced the appellant. Nei ther the appell ant nor the State attempted to make any statements or offer any additiona l evidenceprior to s entencing. F urther, the appel lant made no objection to the trial court’s immed iate sentencing. However, after the trial court pronounced its sentence, counsel for the appellant requested that his client

be permitted to g et treatment. The tr ial court den ied that req uest. Appellant first

contends that the trial cour t erred in fail ing to conduc t a separate sentencing hea ring. This issue is w ithout merit. In misdemeanor sent encing, unli ke sentencing for felony offenses, a s eparate sentencing hea ring isnot requir ed. Tenn. Code Ann. § 40-35-302(a) (Supp. 1995). See also State v. Conners , 924 S.W.2d 362, 364 (Tenn. Crim. App . 1996), perm. to appeal denied (Tenn. 1996). H owever , if a separate s entencing hear ing is not held, the trial court is required to allow the parties a reasonable oppo rtunity to be heard regarding the length and manner of the serv ice of any sentence. Tenn. Code Ann. § 40-35-302(a)

(Supp. 1995). The record does not reflect that the trial cour t denied the appellant this oppo rtunity. Neither appellant, nor his counsel, expressed a de sire to be heard prior to sentencing. The only comment about the service of the sentence was a req uest that the appel lant be permitte d treatment, w hich the court denied. Prio r to sentencing , the appellant ne ither req uested to be heard nor objected to being sentenced wi thout being hear d. By faili ng to contempora neously obj ect, the appella nt has waived considerati on of this issue on appeal. See State v. Ki llebrew , 760 S.W.2d 228, 235 (Tenn. Cr im. App. 1988); Tenn. R. App. P. 36(a ). As in felony sentencing, misdeme anor offen ders must be sentenced in accordance with the principles, purposes, an d goals of the Sentencing Act, an d court must set a rel ease eligi bility date which may not exceed seventy -five (75%)

percent of the sentence. H owever , DUI offenders may be sentenced to one hundred (100%) percent. State v. Pal mer , 902 S.W.2d 391, 393 (Tenn. 1995).4 When a defendant complains of his or her sentence, we must conduct a de

novo review

with a pr

esumption of correc

tness. Tenn. Code Ann. § 40-35-401( d) (1990). The burde n of showing that the sentence is improper is upon the appeal ing party. Tenn. Code Ann. § 40-35 -401(d) Sentencing Commission Com ments. This presumption, how

ever, isconditioned upon an affirmative showing i n the record t hat the trial court consider

ed the sentencing principles and all rel evant facts and circumstances

. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). An order of consec utive senten ces for a multipl e offender is proper only if at least one of sev eral statutor y factors i s present. Tenn. Code Ann. § 40-35- 115 (1990). Those factors incl ude: (1) the de fendant is a professi onal criminal ; (2) the defendant has an extensive record of criminal activity; (3) the defenda nt is a dangerous mentally abnormal person; (4) the defendant is a dangerous offender whose behav ior indicates little or no regard for human life a nd has no hesitation abo ut committing a crime in which the risk to human life is high; and (5) the def endant is sentenced f or an offense committed whi le on probation. Tenn. Code Ann. §40- 35-115(b)(1) , (2), (3) , (4), (6) (1990). In this case, the trial court failed to pr ovide on the r

ecord its r

easons for imposing cons ecutive se ntences when the appellant w as sentenced follow ing his tr ial. At the hearing on the motion for new trial, appel lant’s counsel pointed out that t he trial court had failed to articulate its reasons for the consecuti ve nature of the sentencing. In response, the trial cour t said the reas on was “because he is g oing to ki ll somebody. He has had five prior DUIs. He’s a reckless gun just ready to discharge and kill somebody’s babi es out here. That’ s all he is .” Later in the hearing the court went on to sa y: I’ll arti culate it now , if I didn’t. Because this man, five times D UI he has been caught and convicted. Society des erves bette r than that from our court sys tem. They deser ve better t han to let people like him keep getting on the road. This Court did, he load ed him as much as he could load him. No q uestion in my mind I did it. And I’d load hi m again. Because he’s so rry. H e [sic] jus t as sorry as he can be to be out here on5 the road doing that. No res pect for anyone. He has no res pect for your wife, or y

our childr

en. He has no r

espect for mine or

anyone else out here in soci ety. He’ s a criminal , about as bad a cr iminal as y ou can get. Although the trial judge did not specif ically refer to the statutory factors in his comments, his statements implici tly incl ude a finding that he considered the appellant a dangerous offender. In order to be so classified, it must be estab lished that the offender’s behavior

indicated li ttle or no r

egard for human l ife and it reflecte d no hesitation about committing a c rime in w hich the ris k to human life w as high. Tenn. Code Ann. § 40-35-115(a)(4) (199 0). Additionally, our supreme court has held th at in order to be sentenced as a da ngerous offend er, there must be evidence in the record to demonstrate that the terms imposed by the sentence are reasonabl y related to the severity of the offenses committed and ar e necessary

to protect the public from further criminal ac

ts by the offender. State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). Our revi ew of the recor d on appeal in thi s case leads u s to agree w ith the trial court that the ap pellant is i ndeed a dangerousoffender. While intoxicated, t he appellant got behind the whe el of an automobile and then drove i n excess of ni nety miles per hour on a public highway. That behavior indicates that he had little regard for the liv es of others w ho may have been on the highw ay that nig ht. State v. Howard Glenn Branum , No. 01C01-950 7-CC-00232 ( Tenn. Crim. App. a t Nashvi lle, June 20, 1996). Those acti ons also reflec t that the appell ant had no hesitati on about committing a c rime when t he risk to hu man life was hi gh. W e further agree with the trial court that the length of the sentences imposed is reasonably related to the s everity of the offenses. These offenses are no t isolated incidents; they are appellant’s fif th and third respective violations of moto r vehicle laws. Ba sed upon his pr ior histor y of driv ing whi le intoxi cated and on a rev oked license, str ingent sentences are req uired. Four times the appell ant has pled g uilty to DUI and yet he continues to endan ger those driving on the road. Likewise, twice before he has pled g uilty to driving on a revoked license and y et he continues to violate th e law. As

the trial court correc

tly impli ed, perhaps ser vice of a si gnificant6

sentence wi ll deter the appellant and pro tect the public from his further c riminal behavior. See State v. Anthony Raymond Bell , No. 03C01-950 3-CR-00070 ( Tenn. Crim. App. at Knoxville, March 11, 1996) perm

. to appeal denied (Tenn. 1996); State v. Lonas Britt Dillard , No. 03C01-9311-CR-00386 (Te nn. Crim. App. at Knoxville, July 13, 1994) (cl assifying DUI offender as a dang erous offender). Based upon the foreg oing, we affirm the trial court’s or der that the sentences for DUI and dri ving on a revoked l icense be ser ved consecut ively . However, the tria l court’s judgment that the app ellant serve one hundred (100%) percen t of his sentence for drivin g on a r evoke d lice nse m ust b e mo dif ied t o ref lect a maxi mum seven ty-fi ve (75%) percent release eligibility date. Tenn. Code An n. § 40-35-302(d) (Supp. 199 5); Palmer , 902 S.W.2d at 393. The judgment of the tr ial court i s affirmed in all other respects.

_______________________________ W illiam M. B arker, Ju dge

____________________________ Joe B. Jo nes, Pre siding Jud ge

____________________________ J. Steven Staff ord, Spe cial Judge