FILED

August 7, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL 1998 SESSION

STATE OF TENNESSEE , §

APPELLEE 

 §

VS. C.C.A. No. 01C01-9705-CC-00196

 § Williamson County

 Honorable Henry Denmark Bell

CHARLENE HARDISON, §

APPELLANT (SENTENCING)

FOR THE APPELLANT FOR THE APPELLEE

Lionel Barrett, Jr. John Knox Walkup

Washington Square Two - Suite 417 Attorney General and Reporter

222 Second Avenue, North 425 Fifth Avenue, North

Nashville, TN 37201 Nashville, TN 37243

–––––

Lisa A. Naylor

Assistant Attorney General

425 Fifth Avenue, North

Nashville, TN 378243

Derek Smith

Assistant District Attorney General

P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED: _______________________

AFFIRMED AS MODIFIED

L. T. LAFFERTY, SPECIAL JUDGE
OPINION

The defendant, Charlene Hardison, appeals of right from a ruling of the

Williamson County Criminal Court in which the trial court imposed a sentence

of six (6) months confinement in the Williamson County Jail for the offense of

driving on a revoked license. Also, the Williamson County Criminal Court

consolidated an appeal of the defendant for violation of probation from the

Williamson County General Sessions Court. After a sentencing hearing, the

trial court upheld the judgment of the General Sessions Court and ordered the

defendant to serve six (6) months, less forty-five (45) days credit, as per her

plea of guilty, to run concurrently with the sentence for driving on a revoked

license. After a review of the entire record, briefs of the parties and applicable

law, we affirm the trial court’s judgment as to the revocation of probation, but

remand the sentences as modified.

Background

The record reveals that the Williamson County Grand Jury, on July 8,

1996, indicted the defendant for driving on revoked license on March 30,

1996. On January 21, 1997, the defendant entered a plea of guilty to driving on

a revoked sentence before the Williamson County Criminal Court with all

issues to be determined at a sentencing hearing. The defendant nor the State

submitted a transcript of guilty plea proceedings for driving on a revoked

license. The trial court set a sentencing hearing for March 17, 1997. Also, the

trial court consolidated an appeal in which the Williamson County General

Sessions revoked a period of probation granted to the defendant for the

convic tion of driving under the influence of alcohol on February 9, 1994. 

As to the facts surrounding the appeal of the General Sessions Court

revoking the defendant’s probation, the record establishes that on February 9,

1994, the defendant entered a negotiated reduced plea of guilty to driving under

the influence of alcohol as a first offender, from an orginial charge for a second
offense. The General Sessions Court imposed a fine of $1,000, six (6) months

confinement, at 75%, in the Williamson County jail, the defendant to serve

forty-five (45) days, given jail credit for eighteen (18) days treatment and serve

the balance of twenty-seven (27) days on weekends, and probation for eleven

(11) months, twenty-nine (29) days to expire February 9, 1995. On October 31,

1994, an amended probation order was entered incorporating the special

conditions of February 9th and adjustment of probation fees. The expiration

date was extended from February 9, 1995, to February 9th, 1996. On May 31,

1995, the General Sessions Court issued an arrest warrant for the defendant for

a violation of probation. The defendant was alleged to have not paid any

probation fees, nor completed the balance of her jail time on weekends. On

June 11, 1996, the General Sessions Court revoked the defendant’s probation

and she was ordered to serve the balance of her six (6) month sentence, less

credits. This judgment the defendant appea led to the Williamson County

Criminal Court. 

At the sentencing hearing, the trial court rejected the defendant’s request

for an alternative sentence, such as probation, and followed the State’s

recommendation that the defendant’s two six (6) month sentences run

concurrent, less credit for forty-five (45) days in the violation of probation. 

The trial court stated: “that’s fair, I approve -- I sentence her in accordance with

that.”

From a review of this record, it is somewhat difficult for this Court to

determine exactly what the trial court ruled as to the request for

probation/alternative sentences for the conviction of driving on a revoked

license. A re asonable interpretation, from a review of the judgment orde r, is

the trial court denied any alternative relief. Collaterally, what is the standard of

review for a criminal court when a defendant appeals the judgment of a general

sessions court revoking probation? 
In State v Cunningham No. 02C01-9709-CC-00336, at Jackson, April

21, 1998, Judge Joe Riley, author, held that the standard of review for the

criminal court is de novo in appeals of revocation of probation by a general

sessions court or munic ipal court. TCA 27-5-108 (c). 

Although the trial court did not conduct a de novo hearing in the appeal

of revocation of probation, the defendant in her testimony admitted there were

grounds for the general sessions court to revoke her probation. We will now

move to the questions of a proper sentence for the def endant.

Sentencing Considerations

When a defendant compla ins of his or her sentence , we must conduct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 4-0-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d). This presumption,

however, is conditioned upon an affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and

circumstances. State v Ashby, 823 S.W.2d 166 (Tenn 1991).

In arriving at a proper sentence, the trial court must consider the specific

proc edures of Tenn. Code Ann. § 40-35-210. (1) The evidence, if any,

received at trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the

nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on enhancement and mitigating factors in §§

40-35-113 and 40-35-114; and (6) any statement the defendant wishes to make

in his or her own behalf about sentencing.

In misdemeanor sentencing, a separate sentencing hearing is not

mandatory, but the trial court is required to allow the parties a reasonable

opportunity to be heard on the question of the length of the sentence and the

manner in which it is to be served. Tenn. Code Ann. § 40-35-302 (a). The
sentence must be specific and consistent with the purpose and principles of the

Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(b). 

The misdemeanant, unlike the felon, is not entitled to the presumption of

a minimum sentence. State v Davis, No. 01C01-9202-CC-00062, Williamson

County (Tenn. Crim App. Filed March 17, 1193 at Nashville). In addition, the

trial court is required to fix the sentence at not greater than 75% so the

defendant may be considered for “work release, furlough, and related

rehabilitative programs.” Tenn. Code Ann. § 40-35-302(d). 

In the case under review, the trial court did not designate a percentage in

the sentence for driving on a revoked license, but did in the appeal of the

violation of probation at 75%. Since the sentences were ordered to be served

concurrently, we will assume the percentage of 75% applies to both sentences. 

Sentencing Hearing

Since the trial court was somewhat limited in its ruling as to alternative

sentences, we will conduct a de novo review without a presumption of

correctness. Based on the evidence at the sentence hearing and the presentence report the defendant has had a rather disruptive life beginning in 1991,

primarily due to alcohol abuse. The pre-sentence report indicates the defendant

has severa l arrests for assaults, public intoxication and malicious mischief, a ll

of which were retired or dismissed. The defendant admitted to being arrested

four (4) times for driving under the influence of alcohol; (1) convicted for DUI,

September 9, 1992; (2) convicted for DUI, February 9, 1994 (this case) (3) an

arrest for DUI January 29, 1992 reduced to reckless driving and (4) a pending

DUI and driving on revoked license offenses pending for a sentencing hearing

in the Probate Court of Davidson County, March 31, 1997. Apparently, while

on proba tion from the conviction of driving under the influence of alcohol in

February, 1994, the defendant committed the offense of driving on a revoked

license on March 31, 1996, leading to her conviction. Unfortunately, the
defendant was arrested May 17, 1996, in Davidson County for driving under

the influence of alcohol.

As to the revocation of probation, the defendant admitted that she failed

to comple te her weekend days as ordered by the court. She failed to complete

this confinement period due to being scared about being confronted with the

possibility of homosexual threats. The defendant admitted she failed to report

to her probation office r as directed, but was unaware she had to report in

person. 

To resolve her problem with alcohol, the pre-sentence report reveals the

defendant entered an alcohol treatment program in 1994 at Cumberland

Heights in Nashville. Also, the defendant since her arrest in May, 1996, reentered, in September, 1996, an alcohol treatment at Cumberland Heights. 

Apparently, this treatment center did not recommend in-patient treatment by

them, but suggested extensive out-patient treatment. Whereupon, the defendant

entered a program sponsored by Tennessee Christian Center. The defendant

was in an in-patient program for fourteen (14) days. As part of her recovery,

the defendant attends AA meetings on a regular basis, and has not consumed

any alcohol since June, 1996.

The defendant accounts her turn-around on a conversation with an

inmate in the Williamson County jail. The inmate was incarcerated for killing

a person in an accident involving alcohol. According to the defendant this had

a profound aff ect on her, she must control this problem or she would hurt

herself or others. The def endant’s boyfriend, David Moneypacke r,

corroborated the defendant’s testimony about her not drinking since 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 satisfy probation. The State counters that the defendant is not

entitled to any consideration of probation. The power to suspend a sentence
and imposition of a sentence is within the sole disc retion of the trial court. 

Stiller v State, S. W.2d 617 (Tenn. 1974). Probation is a privilege to be

conferred after a determination of the circumstances of the offense, the

defendant’s criminal record, his social history, his present condition, and where

appropriate, his mental and physica l condition. Id. This criteria must, also, be

considered within the requirements of the Sentencing Act of 1989. 

After a careful review of the evidence in this cause, we find the trial

court was correct in finding the defendant violated her conditions of probation

imposed by the Williamson General Sessions Court. However, we would

remand the causes to the Williamson Criminal Court for orders to be entered

reflecting that the defendant be confined for six (6) months for the offenses of

driving on a revoked license and driving under the influence of alcohol

(General Sessions judgment), payment of a fine $1,000, the defendant to serve

ninety (90) days, continuous confinement, less appropriate credits, and placed

on proba tion for eleven (11) months, twenty-nine (29) days concurrently,

subjected to whatever conditions the trial court deems reasonable. 

___________________________

L. T. Lafferty, Special Judge

CONCUR: 

__________________________

Gary R. Wade, Presiding Judge

__________________________

Thomas T. Woodall, Judge