### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs a t Knoxville , Octobe

r 30, 2001
STATE O F TENN ESSEE v. MARIO RICKY ORLAN DO PR

INTIS
Appeal from the Circuit Court for Obion County No. 0-224 William B. Acree, Jr., Judge

No. W2000-03032-CCA-R3-CD - Filed February 27, 2002

Mario Ricky Orlando Printis appeals from his convictions of dri ving u nder the influence and evading arrest. He quest

ions the su fficiency of the

evidenc e that he

committed

Class D felony evading a

rrest, as opposed to the Class E form of that crime, and he complains that the trial court sentenc ed him

too harshly. Because we are unpersuade d, we affirm the convictions and sentences imposed. Due to an omission from

the DUI j udgment f

orm, howe

ver, we modify tha

t judgment t

o correspond with the lower court’s pronouncements at the sentencing hea ring. Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Aff

irmed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERETT W ILL IAMS , JJ., joined.

David L. Hamblen, Union City, Tenness ee (at tr ial), C. Mi chael Ro

bbins, Mem

phis, Tennessee, and Kevin McAlpin, Dresden, Tennessee (on appea l), for the Appellant, Mar

io Ricky Or

lando Prin

tis.

Paul G. Summers, Attorney Genera l & Reporte

r; Angele M. Grego

ry, Assist ant Attor ney Gene ral; J. Scott McClu en, Distr

ict Attorn ey Gene ral; and James Cannon, Assistant District Attorne y Gener al, for the Appellee, State of Tennessee.
OPINION Procedural History

The defendant was charged in a five- c ount indictment with two counts of driving under the influence, Class D felony evading arrest, conspiracy to possess .5 gram or more of cocaine withintent to deliver or sell, and possession of .5 gram or more of cocaine with intent to deliver or sell. He pleaded guilty to one count of driving under the influence, and one count was dismissed. He also pleaded guilty to evading arrest but left for the j ury’s determination the question whether he commit

ted the C lass E or Class D form of the offense. He had no sentenc ing arrangement pursuant to his guilty pleas.-2- The defenda

nt was tri ed with

two co-defendants. The jury acquitted the defendant of the drug charges but returned a verdict of guilt of Class D evading arrest. The jury convicted one of the two co-defendants of cocaine possession and acquitted him of conspiracy, and it acquitted the other co-def endant of both posse ssion and c onspirac y. The tri al court sentenc ed the de

fendant to eleven months, 29 d ays, 100 p ercent of which was to be served i n the coun

ty jail, for driving under the influence. The court also imposed a Range I, four-year sentenc e for ev ading ar

rest, wit h the firs t year to be served in the county jail and the remaining three year s to be serv ed in the Commu nity Corrections program. Following an unsuccessfu l mot ion for ne w trial, th

e defendant file d this appeal.

Facts

In the ligh t most favorable to the state, the evidence at trial demonstrated tha t on March 13, 2000, Randy O’Dell of the Union City Police Department was on patrol when he noticed
a car weaving slightly and traveling at 30 miles ab ove the sp eed limit. He stoppe d the vehi cle and talked to its driver, the defe ndant, who was n ervous a nd shaking . Office

r O’Del l smelled a

lcohol. The defenda

nt provide d his drive

r’s lic ense, bu t he did not comply with Officer O’Dell’s two request s to step outside the car. When Officer O’D ell reached for the defenda nt’s car door, the defendant fled in the vehicle. Officer O’Dell ch ased the defendant, and he estimated that the pur sui treached speeds of approximately 60 miles per hour . A co-defendant, however, estimated the top speeds at 70 to 75 miles per hour. Officer O’Dell engaged the blue lights and spotlights on his vehicle, but the defendant did not stop. A sergeant from the police de partment ev entuall y instructe d Office

r O’Del l to discon

tinue the pursuit fo

r safety reasons
. A ccording to the defend ant’s co-def endants, both co-def

endants expressed their desir e to get out of

the car during the chase. They were fearful for their safety, and one te stified, “I thought we was fixing to die.” The co-defendants were unable to get outof the car until the defendant ran off the road into a ditch. They walked away from the scene, but the defendant stayed with his car and was able to continue driving it.

A few minutes later, Officer Tack Simmons spotted the defenda nt’s vehicle

after having heard a description of it on his policeradio. He followed the car at a high rate of speed, and although he had his emergency equipment activated, the defe ndant did not stop. The defendant ran a red light, driving around another vehicle that was stopped at the light. During the chase, Office r Simmons observed other vehicles in the opposite lane of traffic. The defendant stopped after about one mile. Officer Simmons testified that the defendant’s blood alcohol level was .12.

Officers M oran and

Duncan o f the Unio n City Police Departm ent resp onded to instructions that they go to a certain location and look for two individuals on foot. Theydid so, and they found the defendant’s two co-defenda nts. Officer Moran observed one of the two c o-defe ndants sq uatting down near a bridge, and he believed this individual was hiding something. Th e tw o suspects were detained, and a sear ch of the bridge area yielded 189.6 grams of c ocaine base.-3- The defendant

Printis presented no proof to rebut the state ’s evide

nce. In t heir ca sesin-chief, both of the

co-def endants attempted to shift culpability for the cocaineto Printis. One codefendant claimed t

hat Pr i ntis had taken something from his pants pocket and thrown it out the window of the ca

r during t he chase . The othe

r co-defendant

testifie d that alt

ho ugh he did not see whether the defendant threw something from the car during the chas e becau se he was watching the police car beh

ind them, he did notic e a plast ic bag sticking out of the defendant’s right pants pocket when Printis was in the process of providing his license to Officer O’De ll.

The state presented rebuttal evidence that the co-de fendant who disavowed

having
seen Printis toss anything from the car had given a prior s tatement in which he claimed to have seen the defendant throw a plastic bag out the car window dur ing the chase.

Afte r the defendant was acquitted of the drug-re lated charges, the court co nducte d a sentencing hea

ring for his DUI a

nd evading arres t convict ions. Sufficiency of the Evidence

Prin tis cha llenges the jury’s finding that he was guilty of Class D felony evading arrest, rather than the lesser-included of fense of Class E felony evading arrest.

The statute de

fining th e offen se of evading arrest provides, “It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway i n this state , to intentiona

lly flee or attempt to elude any law enforcement officer, after having received any signal from such off icer to bring the v ehicle to a stop.” Tenn. Code

Ann. § 39- 16-603(b )(1) (1 997). Thi s offense is a Class E

felony. Id. § (b)(3) . Howeve r, if “the flight or a

ttempt to elude cre ates a r isk of death or injury to innocent

bystanders or other third parties,” the offense is a Class D f elony. Id. § (b)(2), (3).
Thus, the question in this case is whether the defendant’s actions posed a risk of death or injury to others. We hold that they did. According to the testimony of Officer Simmons, there
were other cars on the road during the high-speed chase. The defe ndant failed to yield to the flashing blue lights and spotlights on the police vehicles which pursued him. The def endant w as l egally intoxicated, weaving, and at onepoint, lost control of the car. Fortuitously, the defendant’s conduct didnot result in any actual bodily harm to any of t

hose whos e safet

y was thre atened b y it. However, the evidenc e suffic iently sup ports the jury’s finding of “

risk of death or injury to innocent bystanders or other third parties.” Sentencing

The defendant’s second appellate issue questions the propriety of the sentences imposed for both t

he felon y and the m

isdemea nor convictions. Th e trial court sentenced the defendant to serve eleven mon

ths and 29 d ays of ja

il confine ment at 10 0 perce

nt servic e for his misde meanor

DUI co nviction. For the Class D felony evading arrest conviction, the trial court imposed a four-year sentence with the first ye ar to be served i n the county jail and the remaining-4-

three years to be served in the Community Corrections progra m. Th e trial court ordered the two sentences to run concurrently.

The essence of

the defenda

nt’s sente ncing com

plaint is th at he wa s sentenc ed harsh ly
as a result of the trial court’s improper consideration of the state’s e vidence that he was guilty of a drug offense, even though the jury acquitted him of the drug charges . However, he does not challen ge the le

ngthof the effective

four-year sentence. Rather, he claims that the proper manner of service of this sentence would have been one which allowed f or proba tion with “ a reaso nable term” of Community Corr ections as a condition to probation, following service of the 48-hour mandatory minimum confinement period for DUI.

When there is a challenge to the length, range, o

r manner of servi ce of a s entence , it is the duty of this court to conduct a de n ovo review of the record with a presumption that the determinations made by the trial court are correct. See Tenn . Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered

the sente ncing pri nciples a

nd all relevant f

acts and circumst ances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
A. Evading Arr

est - Fe lony Sentencing

We first consider

the propriety of the manner of service of the defendant’s four-ye ar sentence for the Class D felony of evading arr est.

In felony se

ntencing , the tria

l court ha s an aff

irmative duty to sta

te on th e reco rd, either orally or in writing, which enhancement and mitigating factor s it found a nd its findings of fa

ct. Tenn. Code Ann. §§ 40-35-209(c), - 210(f) ( Supp. 2000) ; State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1 998); State v. R ussell , 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).

In making a

felony se ntencing determin ation, the

trial cou rt, at the conclusion of the sentencing hearing, determines the range of sentenc e and then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence, if any, rec eived at the trial and the sente

ncing hea ring, (2) the pres entence

report, (3) the p

rinciple s of sente

ncing and argumen ts as to sentencing alternatives, (4) the nature and cha racteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) a ny statemen ts the defendant wishes to make in the d efendant 's behalf about sentencing, and (7) the potential for rehabilitation or treatment. See Tenn. C ode An n. § 40-35-210(a), (b) (Supp. 2001); Tenn. Code Ann. § 40-35-10 3(5) (1 997); State v. Holland , 860 S.W.2 d 53, 60 (T enn. Crim. App.1993).

A defendant who "is an especially mitigated or standard offe nder convicted of a

Class C, D, or E felony is presumed to be a favorable candidate for alterna tive sentencing options in the absence of evide

nce to the

contrar y." T enn. Code Ann. § 40-35-102(6) (1997). However, a defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear disregard for the laws and morals of society, and[has failed] past efforts at rehabilitation” does not-5-

enjoy the presumption. See id. § 40-35-1 02(5), ( 6); State v . Fields , 4 0 S.W.3d 435, 440 (Tenn. 2001). Furthermore, the defendant’s potential for rehabilitation or lack thereof should be examined when determining whether an alternative sentence is appropriate. Id. § 40-35-103(5). Sentencing issues are to be deter

min ed by the facts and circumstances prese nted in each case. See State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

The defenda

nt in this case enjoys the presumption of favorable candida cy for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, he is eligible for probation. See id. § 40-35-303(a) (Supp. 2001). Unlike the presumption of favorable candidacy for alternative sentenc ing in gene ral, a de fendant bears th e burden of demo nstrating t he suitability of probation, in particular. State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled
on other grounds by State v. Hoope r , 29 S.W.3d 1, 9 (Tenn. 2000). To meet that burden, the defendant must show that probation will "subserve the ends of justice and the best in

terest of both the public an d the def

endant." Id. at 456 (citation omitted) . In that regard, the trial court appropriately considers the defendant’s ca ndor and credibility, or lack thereof , as indic ators of

his potential for rehabilitation. See, e.g., State v. Nunley , 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999), perm. app. denied

(Tenn. 2 000); State v. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

The trial court was heavily influenced by the defendant’s denial at sentencing of any involvement

in the drug trade, which tes timony the c ourt flat ly rejec ted given

severa l indicato rs to the contrary. The defendant testified to only sporadic employment during his adult life, and he had notworked for some time prior to the offenses. Nevertheless, he had over $400 in his possession when he was arr

ested. H e claime d that he s upported himself with the $2 00-300 pe

r month his f

amily gave him and that the money in his possession at the time of the offenses constituted proceeds from the sale of tire rims from his car. He also admitted to having purchased new rims for his tires that cost $700, and he claimed to have financed that purcha se with the funds from his family.

Citing his acquittal on drug charg es at trial, the defendant complains that the court should not have considered any evidence that he w as a drug deal er i n determining the correct sentence alternative. We disagree. Becau se the facts underlyi ng those charges w ere inte rtwined with the f acts of the conviction offenses, they constitute part of the “nature a nd characteristics of the criminal conduct involved,” which are properly considered by the trial court at sentencing, including in the determination of

“the appropriate combination of sentencing alternatives that shall be imposed
on the defendant.” See Tenn. Code Ann. § 40-35-210(b)(4) (Supp. 2001). Moreove r, our sup reme court has said that a sent encing cour t properly considers facts relative to an offe nse of which the def endant was acquitted if the facts are established by a pr eponderance of the evidence

. State v. Winfield , 23 S.W.3d 279, 283 (Tenn. 2000). The lower court’s consideration of the fa cts underlying the acquitted drug charges was not improper.

When the evidence presented at trial r elative to the cocaine recovered at the bridge is considered

in conjunction with the defendant’s own testimony about his source of income at the sentencing hearing, it becomes clear that the defenda nt’s pro spects for rehabilitation and thereby, suitability for full probation, is dubious given the trial court’s determination that his testimony was incredible. Thus, the trial court properly rejected full probation as a se ntencing option. We therefore-6-

reject the defe ndant’s a ppellate claim tha t he should

be sentenced to full probation conditioned on participation in the Commu nity Corrections pr

ogram fo r a “re asonable

term” save the 48 hours he is required by statute to serve in jail for his DUI conviction.

In passing on the question of other alternatives, the lower court found that the state had not rebutted the defendant’s favorable pre sumption for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997). Thus, it imposed a sentence consisting

of confi nement a

nd Community Corrections. In determining whether the defendant ha s borne the appellate burden of overcoming the presumptive correctness of the sentence a lternative imposed, see id. § 40-35-401(d), we return to his prospects of rehabilitation. See id. § 40-35-103(5) (“The potential or lack of potential for the rehabilitation or trea

tment of th

e defendant sh ould be co nsidered in determining the sentence alternative or length of a term to be imposed.”).

In t hat regar d, we conclude that the defendant has not car ried his burden of demonstrating the err

or of his s entence . We agr ee with th

e trial c ourt that s ome measure o f confinement was warranted and that the structured

nature of the Community Corrections program provides a suitable alternative for this defendant who is without a significant employment history, and who albe

it without a s ignifica

nt crimina

l history ne

verthel ess appear s to have b een involved in serious criminal activity. Thus, we affirm the felony sentence imposed.

B. DUI - Mis demeanor Sentencin g
We now consider the defendant’s contenti on that he should be allowed to serve

all but48 hours of his misdemeano r DUI sen tence on probation with a Community Corrections condition for a “reasonable term.”

In contrast with felony sentencing, misdemeanor sentencing affords the sentencing court with greater flexibility. See, e.g., State v. Johnson , 15 S.W.3d 515, 518 (Tenn. 1999), perm. app. denied

(Tenn. 2000). The misdemeanor sentencing statute only require s that the trial court consider the enhancement and mitigating factors when calculating the percen tage of t he sente nce to be served "in actual confinement" prior to "consideration for work rel ease, furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. § 40-35-302(d) (Supp. 200 1); State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998).

A separate sentencing hearing is not mandator y in misdeme anor ca ses, but the court is requiredto provide

the defe ndant with

a reaso nable

opportunity to be heard as to the length and
manner of the sentence. See Tenn. Code Ann. § 40-35-302(a) (Supp. 2001). Misdemeanor sentence s must be specific and in accordance with the principles, purpose, and goals of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104 (1997), 40-35-302 (Supp. 2001); State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentence d to an auth orized d

etermina nt sentence with a

percen tage of t hat sente nce desi gnated f

or eligibi lity for reh abilitativ e progra

ms. Generally, a percentage of not gr eater than 75 percent of the sentenc e should be fixed for a misdemeanor offender; howe ver, a DUI offender may be required to serve 100 pe rcent of his sentence. Palmer , 902 S.W.2d at 393-94. In determining the percentage of the1 As we state d in the f elony sentenci ng secti on above, considerat ion of the nat

ure and characte rist

ics underl ying the offense i s rel evant to det ermining the manner of ser vice of t he sentence. See Tenn. Code Ann. § 40-35-210( b)(4) (Su pp. 2 001 ); State v. W infield , 23 S.W.3d 279, 283 (Tenn. 200 0).
-7- sentence, the court must consider enhancement and mitigating facto rs as well as the legislative purposes and principles related to the sentencing. Id

.

Upon service of that percentage, the a dministrative agency gov e rning the rehabil itati ve program s determines whic h among the lawful pr ograms a vailable is appropriate. Tenn

. Code Ann. § 40-35-302(d) (Supp. 2001). The trial court re tains the a uthority to

place the defendant
on probation either immediately or after a t erm of periodi c or continuous confinement. Id. § 40-35-302(e). The legis la ture has encouraged courts to consider public or pr ivate agencies for probation supervision p rior to di recting supervision by the Department of Correction. Id. § 40-35-302(f). The g overnin g statute p rovides t hat the tr ial cour t has cont

inuing jur

isdiction i n misdemeanor

cases and a wide latitude of flexibility. A convicted misdemeanant, unlike a convicted Class B, C, D, or E felon, has no presumption of entitlement to a minimum sentence. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Cr easy , 885 S.W.2d 829 , 832 (Te nn. Crim. App. 1994).
Moreover, the provisions of the Tennessee Community Corrections Act of 1985 are nota pplicabl e to misdemeanants. See gen erally Tenn. Code Ann. § 40-35-106 (1997). Thus, the only sentencing alternatives available to misdemeanants are the payment

of a fine and some form of probation. See id. § 40-35-104(c) (1997).

The record in this case reflects that the sentenc ing court conside red the pertinent principles and factors in arriving at its 100 percent service determination for the e leven month, 29 day misdem eanor se

ntence. The lowe

r court f ound that a

sentenc e more se

vere tha n normall y required for a first offense of DUI was appropriate because of the aggrava ted circumstance s of this case, to wit, the defendant was evading arrest with “a c ar full of dope” when he committed the DUI offens e. 1 It is the defe

ndant’s burden on

appeal t o convinc e us that th

is is not the

appropr iate sentence. His arguments and citations have not overcome the presumpt ive correctness of the sentenc e imposed

by the low er cour

t. Finally, we are

compelle d to corr

ect an ir regular ity inthe DUI j udgment f orm. The lower co urt clearly announced its intent that the defendant serve 100 percent of the misdemeanor sentenc e; never

theless, it failed

to refle ct this in itsjudgment. The general rule is that a judgment which does not reflect a percentage of service is interpreted as requiring zer o percent service. See id. § 40-35-302(d) (Supp. 2001). An exce ption to tha

t genera l rule is applicable when the sentencing court’s clear intent is reflected in the transcript. See Russ ell , 10 S.W.3d 278-79. Such is the case here. We therefore modify the judgment in the DUI conviction to reflect 100 pe rcent serv ice

. Otherwise, the judgment is affirmed.-8- ___________________________________ JAMES CURWOOD WITT, JR., JUDGE