FILED

January 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

DECEMBER 1997 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9608-CC-00248

Appellee, )

) HENRY COUNTY

VS. )

) HON. JULIAN P. GUINN,

THOMAS BURLENE LOWERY, JR., ) JUDGE

)

Appellant. ) (Sentencing)

FOR THE APPELLANT:

VICKI H. HOOVER

123 North Poplar Street

Paris, Tennessee 38242

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

SARAH M. BRANCH

Assistant Attorney General

Cordell Hull Building - 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

G. ROBERT RADFORD

District Attorney General

VICKI S. SNYDER

Assistant District Attorney General

111 Church St., P. O. Box 686 

Huntingdon, TN 38344-0686

OPINION FILED: 

AFFIRMED

JOE G. RILEY,

JUDGE
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OPINION

The appellant, Thomas Burlene Lowery, Jr., appeals from the sentence

imposed upon a jury verdict of driving under the influence, third offense, entered by

the Circuit Court of Henry County. The appellant contends the trial court erred in

imposing an excessive sentence and denying probation. We affirm the judgment

of the trial court.

FACTUAL BACKGROUND

Although sufficiency of the evidence is not at issue, some factual background

may prove instructive. On October 21, 1995, Henry County DUI Task Force Officer,

David Powell, arrested the appellant and charged him with DUI. Appellant was

subsequently indicted for DUI, third offense.

At trial, Officer Powell testified that appellant was driving in the wrong lane

of the roadway and crossed the center line a total of five times before he was

stopped. He also testified that appellant performed poorly during the roadside

sobriety tests and refused the breath test. 

The appellant testified that he had been to a local nightclub, but that he had

only two beers from 8:00 p.m. until midnight. Appellant denied having driven on the

wrong side of the road and contended that he had performed as instructed on the

sobriety tests.

It is apparent the jury found appellant to be untruthful. The jury returned a

verdict of guilty. Shortly after the verdict, the trial court announced it would “hear

anything that you want me to hear before I impose sentence in this case.” Defense

counsel made a brief statement asking for leniency and placement in a “rehab

center.” There was no request for a continuance of the sentencing hearing nor an

objection to the court's proceeding. The court imposed a fine of $1,100 pursuant

to a pre-trial agreement between the state and appellant. The court also imposed

a sentence of eleven (11) months and twenty-nine (29) days and authorized
3

rehabilitation for alcoholism after he had served 150 days. The court also stated

that if appellant successfully completed the alcohol program, the remainder of his

sentence would be suspended upon the appellant's motion.

SENTENCING

The standard of review for the sentence of a trial court is de novo with a

presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles of the Criminal Sentencing Reform Act and all

relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). Misdemeanor sentencing must also be in accordance with the Criminal

Sentencing Reform Act. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).

Appellant complains the trial court refused to allow counsel time to prepare

for a sentencing hearing. In imposing a sentence for a misdemeanor, the trial court

must either conduct a separate sentencing hearing or at least “allow the parties a

reasonable opportunity to be heard on the question of the length of any sentence

and the manner in which the sentence is to be served.” Tenn. Code Ann. § 40-35-

302(a). A pre-sentence report is optional for misdemeanors. Tenn. Code Ann. §

40-35-205(a).

There is nothing in the record to reflect that counsel requested a

continuance, or that the trial court would have refused such a request. This waives

any entitlement to relief. See Tenn. R. App. P. 36(a). Furthermore, there is nothing

in the record now before us to show that appellant was prejudiced by the immediacy

of the sentencing hearing. 

Punishment for this offense is set out in Tenn. Code Ann. § 55-10-403(a)(1).

Probation for the entire sentence without confinement is not authorized by statute.

The statute requires a minimum of 120 days continuous incarceration for this

offense. Id. The court in this case sentenced appellant to an additional thirty (30)

days in confinement. The court made it clear that the remainder of appellant’s
4

sentence would be spent on probation if appellant successfully completed alcohol

rehabilitation. 

Our Supreme Court has recently held that “a DUI offender can be sentenced

to serve the entire eleven month and twenty-nine day sentence imposed as the

maximum punishment for DUI so long as the imposition of that sentence is in

accordance with the principles and purposes of the Criminal Sentencing Reform Act

of 1989.” State v. Palmer, 902 S.W.2d at 394.

The sentence in the case before us is not excessive. In our de novo review,

we find the sentence imposed is justified under the principles of the Tennessee

Criminal Sentencing Reform Act of 1989. The sentence will restrain the appellant

from driving while under the influence and being a danger to others and himself.

It also encourages voluntary participation in rehabilitation. The trial court has left

the ultimate length of incarceration up to the appellant, who has the option of

seeking rehabilitation to shorten his confinement from eleven (11) months, twentynine (29) days to 150 days. In effect, the court has given appellant the keys to his

own jail cell after the mandated conditions are met.

This issue is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. 

 

JOE G. RILEY, JUDGE

CONCUR:

 

JERRY L. SMITH, JUDGE

 

CURWOOD WITT, JUDGE