# FILED August 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE APRIL 1 998 SE SSION

STATE OF TENNESSEE , §

APPELLEE § VS. C.C.A. No. 01C01-9705-CC-00196 § Williamso n Coun ty Honora ble Henr y Denmar k Bell CHARLENE HARDI SON, §

APPELLANT (SENTENCING)

FOR THE APPE

LLANT FOR THE APPELLEE Lionel Barrett, Jr. John Knox Walkup Washington Square Two - Suite 417 Attorney General and Reporter 222 Sec ond Av enue, No rth 425 Fifth Avenu e, North Nashville, TN 37201 Nashville, TN 37243

––––– Lisa A. Naylor Assistant Att

orney General 425 Fifth Avenu e, North Nashville, TN 378243

Derek S mith Assistant Dist

rict Attor

ney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED: _______________________

AFFIRMED AS MODIFIED L. T. LAFFERTY,

SPECIAL JUDGEOPINI ON The defendant, Charlene Hardi son, appeals of r ight from a ruli

ng of the Williamson County Cri minal Court in which t

he trial cour

t imposed a sentence of six (6) months confi

nement in the Williamson County Jail for the offense of driving on a revoke d license. Also, the Williamso n County Criminal C ourt consolidated an appe al of the defendant for violation of pr

obation from the Williamson County Gener al Sessions Court . After a sentenci ng hearing, the trial cour t upheld the judgment

of the General Sessions Court and ordered the defendant to serve six (6) months, l ess forty -five (45) day s credit, as per her plea of guilty, to run concurr ently wit h the sentence for dr

iving on a revoked license. Af ter a review of the entire r ecord, brief s of the par ties and app licable law, we affirm the tr

ial court’ s judgment as to t he revocation of proba

tion, but remand the sentences as modified. Background The record reveals t

hat the Willi amson County Grand Jury , on July 8, 1996, indicted t

he defendant for dri

ving on revoked licens e on March 30, 1996. On January 21, 1997, the defendant enter

ed a plea of guilt

y to drivi ng on a revoked sentence b efore the W illiamson C ounty Crimin al Court w ith all issues to be d etermined at a sentenc ing hearing . The defe ndant nor the State submitted a tr

anscript of gui

lty plea proceedings for dr iving on a revoked license. The t

rial court set a sentenci

ng hearing for March 17, 1997. Also, the trial cour t consolidat

ed an appeal in which the Wil liamson County General Sessions revoked a per

iod of probation gr

anted to the defendant

for the convic tion of d riving u nder th e influe nce of alcoho l on Feb ruary 9, 19 94. As to the facts surroun ding the appeal of the General Sessions C ourt revoking the defendant ’s probation,the record est ablishes tha

t on February 9, 1994, the defendant ent ered a negotiat

ed reduced plea of guil

ty to dri ving under the influence of al

cohol as a first

offender, from an orgi

nial charge for a

secondoffense. The General Sessi ons Court imposed a fine of $1, 000, six (6) months confinement, at 75%, i

n the Williamson County jail, t he defendant to serve forty-fi ve (45) days,given jail c redit for eighteen (18) day s treatment and s erve the balance of twenty

-seven (27) day s on weekends, and probation for eleven (11) months, twenty

-nine (29) day s to expire Februar y 9, 1995. On October 31, 1994, an amended probation or der was entered incor

porating the special conditions of Februa

ry 9th and adj ustment of probation fees. The expirat ion date was extended from Februar y 9, 1995, t

o February 9th,

1996. On May 31, 1995, the General Sess ions Court issued an arrest warrant for the defendant for a violation of pr

obation. The defendant was alleged to have not paid any prob ati on fe es, nor c ompl ete d the bala nce o f her

jail ti me on weeken ds. On June 11, 1996, the General Sessions Court revoked the defendant’s pr obation and she was ordered to serve the balance of her six (6) month sentence, less credits. This ju dgment th e defend ant appea led to the W illiamson C ounty Crimin al Cou rt. At the sentencing hearing, the trial court rejected the defendant’s request for an alternative sentence, such as probation, and follow ed the State’s recommendation that t

he defendant’s two si

x (6) month sentences

run

concu rrent, less credit fo r forty-fiv e (45) d ays in the v iolation of pro bation. The trial cou rt stated: “that’s f air, I approve -- I sentence h er in accord ance with that.” From a re view of th is record, it is som ewhat dif ficult for this C ourt to determine exactl

y what the tr

ial court r

uled as to the r

equest for probation/al

ternative s entences for the c onviction of dri ving on a revoked license. A re asonable in terpretation, fro m a review of the judg ment orde r, is the trial court denied any

alternati ve relief. Collateral

ly, what i s the standard of review for a crimina

l court when a defendant appe als the judgment of a general sessions cour

t revoking pr

obati on?In Stat e v Cunning ham No. 02C 01-9709 -CC-00 336, at Jack son, April 21, 1998, Judge Joe Ril ey, author, held that t

he standard of revi

ew for the criminal court

is de novo in appeals

of revocation of proba

tion by a gener

al session s court o r munic ipal cou rt. TCA 27-5-1 08 (c). Although the tri al court did not conduct a de novo hearing in the appe al of revocation of pro bation, the defendant in h er testimony admitted there were grounds for the genera

l sessions cour

t to revoke her pr

obation. We will now move to th e questions of a prop er sentence for the def endant. Sentencing Considerations When a defenda nt compla ins of his or h er sentence , we mus t conduct a de novo review with a presumption of correctness.Tenn. Code Ann. § 4-0-35- 401(d). The burden of showing t hat the sentence

is improper is

upon the appealing party . Tenn. Code Ann. § 40-35-401(d). This presumption, however, is condit

ioned upon an affirmati ve showing in the recor d that the tr

ial court considered the sentencing pr inciples and al

l relevant fa

cts and circum stances . State v A shby, 823 S.W.2d 1 66 (Tenn 199 1). In arriving at a proper sen tence, the trial co urt must co nsider the sp ecific proc edu res o f Te nn. C ode Ann . § 40 -35- 210 . (1) T he ev iden ce, if any, received at t

rial and the s entencing heari ng; (2) the pres entence report; (3) the principles

of sentencing and argument s as to sentenci

ng alternati

ves; (4) the nature and charact

eristic s of the criminal

conduct involved; (5) evidence and information offer

ed by the part

ies on enhancement and mit igating fact

ors in §§ 40-35-113 and 40-35-114; and ( 6) any stat ement the defendant wishes to make in his or her own behalf about sentencing. In misdemeanor sentenci ng, a separate s entencing heari ng is not mandato ry, but the trial court is re quired to allo w the par ties a reasona ble opportunity

to be heard on the quest ion of the length of

the sentence and t

he manner in which it i s to be served. Tenn. Code Ann. § 40-35-302 (a). Thesentence must be speci fic and consist

ent with the purpos e and principles of the Crimin al Sente ncing R eform Act of 1989. T enn. C ode A nn. § 40 -35-30 2(b). The misdemeanant, unli ke the felon, i s not entit led to the pres

umption of a minim um sen tence. State v D avis, No. 01C01-9202-CC-00062, Williamson County (Tenn. Crim App. Fi led March 17, 1193 at Nashvil le). In addi

tion, the trial cour t is requir

ed to fix the sent

ence at not great

er than 75% so the defendant may be considered for “work releas e, furlough, and r elated rehabili tative pr ogram s.” Ten n. Cod e Ann . § 40-3 5-302 (d). In the case u nder review , the trial court did not design ate a percen tage in the sentence for dr

iving on a revoked li

cense, but did i

n the appeal of the violation of pr

obation at 75%. Since t he sentences were order ed to be served

concu rrently, we will assu me the percen tage of 75% applies to both senten ces. Sentencing Heari

ng Since the tri al court was somewhat li mited in its

ruling as to a

lternati ve sentences, we will

conduct a de novo review without a presumption of correctness. Based on the evidence at t he sentence heari

ng and the presentence report

the defendant has had a r ather disrupt

ive life begi

nning in 1991, primarily due to alcohol abuse.The pre-sentence re port indicat

es the defendant has severa l arrests for ass aults, public into xication an d maliciou s mischief, a ll of which were retired or dismissed. The defenda nt admitted t

o being arreste

d four (4) times for driving u nder the influence of alcohol; (1) convicted for D UI, September 9, 1992; (2)

convicted for DUI, Februar y 9, 1994 (thi s case) (3) an arrest for DUI Januar

y 29, 1992 reduced t

o reckless dri

ving and (4) a pending DUI and driving on revoked license offenses pending for a sentencing heari

ng in the Prob ate Court o f Davids on Cou nty, March 3 1, 1997. A pparently, wh ile on proba tion from th e convictio n of driving under the in fluence o f alcohol in February, 1994,

the defendant committ ed the offense of drivi

ng on a revoked license on March 31, 1996,leading to her convi ction. Unfortunat

ely, t hedefendant was arrest ed May 17, 1996, in Davidson County for driving under the influen ce of alcoh ol. As to the revocation of probation, t he defendant admitted that she fail ed to comple te her wee kend days a s ordered b y the court. She failed to com plete this confinement

period due to being s cared about being confr onted with the possibility of homosexual threats. Th e defendant adm itted she failed to report to her prob ation office r as directed, b ut was un aware sh e had to rep ort in person . To resolve her probl

em with alcohol, t

he pre-sentence r

eport reveals

the defendant entered an a

lcohol treat

ment program in 1994 at Cumberland Heights in Nashvill

e. Also, the defe

ndant since her ar

rest in May, 1996, reentered , in Sept embe r, 1996 , an alco hol treat ment a t Cum berland Heigh ts. Apparently,this trea

tment center did not recommend in-pati ent treatment

by them, but suggest

ed extensive out-patient tr eatment. Whereupon, t he defendant entered a program sponsor ed by Tennessee Christian Center. The defendant

was in an in-p atien t pro gram for f ourt een ( 14) d ays. A s par t of h er re cov ery, the defendant att

ends AA meetings on a regular bas is, and has not c onsumed any alcohol s ince June, 1996. The defendant accounts her turn-around on a conversation with an inmate in the Will

iamson County jai

l. The inmate was inca

rcerated for ki

lling a person in an accide

nt involving al

cohol. According to t

he defendant this ha

d a profound aff ect on her, she must co ntrol this problem or she w ould hurt herself or others. The def endant’s boyfriend, Dav id Moneypacke r, corroborated t

he defendant’s testimony about her not drinking si

nce June, 1996 and her endeavors to face her alcohol problems. The defendant would urge this Court that some conditions, in its de novo review, would sati sfy probati on. The State counter

s that the defenda

nt is not entitled t o any considera

tion of probation. The power to suspend a sent enceand im position of a sen tence is w ithin the sole disc retion o f the trial court. Stiller v S tate, S. W.2d 617 (Tenn. 1974). Proba tion is a pri

vilege to be conferred after a

determinati on of the circumstanc es of the offense, t he defendant’s criminal reco rd, his social history, his present condition, and wh ere approp riate, his m ental an d physica l conditi on. Id. This criter ia must, als o, be consid ered w ithin the require ments o f the Se ntencin g Act o f 1989

. After a careful re

view of the evidence in t his cause, we find t

he trial court was correct

in finding the def

endant violat

ed her conditions

of probation imposed by the William son Gen eral Session s Court. H oweve r, we wo uld remand the causes to t

he Williamson Criminal Court for orders t

o be entered reflecting t

hat the defendant be c onfined for six (6) months for the offenses of driving on a revoked l

icense and drivi

ng under the influenc e of alcohol (General Sessions j udgment), payment of a fine $1,000, t

he defendant to serve ninety (90)

days, cont

inuous confinement, less appropri ate credits , and placed on p roba tion for e leve n (11 ) mo nths , twe nty-n ine ( 29) d ays co ncu rren tly, subjec ted to w hateve r condi tions the trial cou rt deem s reason able.

___________________________ L. T. Lafferty , Special Judge CON CUR :

__________________________ Gary R. Wade, Presidi

ng Judge

__________________________ Thomas T. Woodall, Judge