# FILED
January 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON DECEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9608-CC-00248 Appellee, ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, THOMAS BUR LENE LOWERY, JR., ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT : VICKI H. HOOVER 123 North Poplar Street Paris, Tennessee 38242 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter SARAH M. BRA

NCH Assistant Attorney Gener al Cordell Hull Buildi ng - 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 FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The appellant, Thomas Bur len e 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 BA CKGROUND
Although sufficiency of the evidence i s not at issue, s ome factual background mayprove instructiv

e. On October 21, 1995, HenryCounty DUI Task Force Officer, David Powell, arrested the a ppellant and charged him w ith D UI. Appel lant was subsequently indicted for DUI, third offense. At trial, OfficerPowell testified that appel lant was driving in the wrong lane of the road

way an d crossed the ce nter li ne a tota l of five times be

fo re he was stop ped. He also testified that appellant performed poo rly during the roadsi d e sobriety tests and refused t he 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 t he wrong side of the road and contendedthat he had performed as instructed on the sobriety tests. It is apparent the jury found appe llant to be untruthful. The jury returned a verdict of guilty. Shortly after the ver dict, the trial court anno unced 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 l eniency and placement in a “reha b center.” There was

no request for a continuance of the sentencing hearing nor an objection to the court's proceeding . The cou r t 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) da ys and authorized3

rehabilitation for alcoholism after he h ad served 150 days. The cou rt also stated that if appellant successfully completed the alcohol progr am, the remainder of his sentence would be suspended upon t he appellant's motion.

SENTENCING

The standar

d of rev iew fo r the senten ce 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 sho wing in the record th at the t rial judge considered the sentencing principl es of the Criminal Sentencing R eform Act and all relevant facts and circumstances. State v. Ashby , 823 S. W.2d 166, 1 69 (Tenn. 1991). Misd emeanor s entencing must also be in acc ordance with the Crimi nal Sentencing Reform Act. State v. Palmer , 902 S.W.2d 391, 39 3 (Tenn. 1995). Appellantcomplains the trial court refused to allow counsel t ime to prepare fora sentencing hearing. In imposing a sentence for a misdemeanor, the trial court must either conduct a separate sent encing 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). The r e is nothing in the recor d to reflect that counsel req uested a continuance, or that the trial court would have refusedsuch a request. This waives any entitlement

to relief. See Tenn. R. App. P. 36(a). Furthermor e, 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 mini mum of 120 days continuous incarc eration for t his offense. Id . The court in this case sentenced appellant to an additional thi rty (30) days in confinement. The court made it cl ear that the remainde r of appella nt’s4

sentence would be spent on probation if appellant succes sfully completed alcohol rehabilitation. Our Supreme Court has recently held that “a DUI offender can be sent enced to serve the entire elev en month and twenty-nine day sentence imposed as the maximum punishment for DUI so long as the i mposition 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 justif ied un der the principles of the Tennessee Criminal Sentencing Reform Act of 1989. The sentence will restr ain the appellant from driving whil e under the influence and being a dan g er to other s and him self. It also enc

ourages volunt ary par ticipa tion in rehabil itation . The tri al cour t has le ft the ultima

t e 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 tri al court.

JOE G. RILEY, JUDGE CONCUR:

JERRY L. SMITH, JU DGE

CURWOOD WITT, JUDGE