### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs J uly 24, 2002

STATE OF TENNESSEE v. RICKY RAY HUM PHREY
Appeal from the Crimin al Court for Campbell C ounty No. 10513 E. Shayne Sexton, Judge

No. E2001-00512-CCA-R3-CD August 20, 2002

On October 19, 2000, the D efendant e ntered “best

interest” gu

ilty pleas to two

counts of c hild abuse and neglect and three counts of indecent exposure. Pursuant to his plea agreement, the Defendant received five sentences of 11 m

onths and 29days to be served at 7 5%. The plea agreement apparently

contemplated a hearing to determine the manner of service of the sentence. Following
a hearing, the trial court o rdered the D efendant to

serve a split

sentence on the first

count with

three months to be served on county work release and the bal ance of the sentence to be served on supervised

probation. The court or

dered each o f the rema

ining senten

ces to be served

on probation and consecutiv e to the split sentence, f

or an effective

sentence of

five years. It is from

this order the Defendan t now appea

ls as of righ

t. We aff irm the jud

gment of the trial cou

rt.

Tenn. R. A pp. P. 3 Ap peal as of R ight; Judgme

nt of the Tri al Court Af firmed

D AVID H. W ELLES , J., delivere d the opinio n of the co urt, in w hich J ERRY L. S MITH and J OE G. R ILEY , JJ., joined.
Timothy P. Webb, Jacksboro, Tennessee, for the appellant, Ricky Ray Humphrey.

Paul G. Summer s, At torney General and Reporter; Thomas E. Williams, A ssistant Attorney General ; William Paul Phillip s, District

Attorney General; and Michael Ripley, Assistant District Att orney General, f or the appell ee, State of

Tennessee.

OPINION

The Defendant, Ricky Ray Hump hrey, entere d “best interest” guilty pleas to two counts of child abuse and ne glect, class A misdem eanors, and

three countsof indecen

t exposure, also class A misdem

eanors. In a

ccordance w ith the plea a greement, the trial cou

rt sente nce d the Defendant to five consecutive sentences of 11 months and 29 days at 75%. Whether the sentences were to be served in confinement or on probation was to be decided by t he trialcourt. The f

irst sentenc e was ordered served in split confinement, with the first three months to be served on county wor k release and the balance of

the sentence

to be served on supervised probation. Each of the remaining four-2-

consecutive sentences was to be served on probation as well. The Defen dant raises o ne issue in th is direct appeal: whether the trial court erred by not properly considering any enhancing or mitigating factors while deciding the manner of service of t

he Defend ant’s sentence. T he Defend ant asks this Court to vac ate the sentencing order and remand to the trial court for resent encing or, in th e alternative, order that the Defendant be placed on probation for t he length of his sen tence. We decline in both respects.

Misdemeanor

sentencing

is controlle d by Tennes see Code An notated sect

ion 4 0-35-302, which provides in part that the trial court shall i mpose a specific sentence consistent with the purposes and princip les of the 1989 Criminal Sentencing Reform Act. SeeTenn. Code Ann. § 40- 35-302(b). Misdemeanor sentenc ing is designed to provide the trial court with continui ng jurisdiction and a great deal of flexibility. See State v. Tro utma n , 979 S.W.2d 271, 273 (Tenn. 1998); State v. Bak

er , 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One conv icted of a misdem eanor, unlike one convicted of a felony, is not entitled to a presumptive sentence. See State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

In misdemeanor sentencing, a separate sentencing hearing is not mand at ory, but the court is required to provide the defendant with a reaso nable oppor

tunity to be heard as to the length and
manner of service of the sentence. See Tenn. Code Ann. § 40-35-302(a). The trial court retains the authority to place the defen dant on pr obation e ither immed iately o r after a t ime of pe riodic or continuous confinement. See id. § 40-35-302(e).

Unlike the felony

sentencing

statute, the misdem

eanor senten

cing statute

“merely re quires
a trial judge to consider enhancement and mitigating factors when calculating the percentage of a mi sdemeanor

sentence to b e served in co nfineme nt.” State v. Troutman , 979 S.W.2 d 271, 27 4 (Tenn. 1998). Tria

l courts are

not required to place findings of enhancement and mitigatin g factors in the record when conducting misdemeanor sentencing. See State v. Ru ssell , 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999) (citing Troutman , 979 S.W.2d at 274 (Tenn . 1998)). Therefore, our
concern in reviewing misdemeanor sentencing is whether the trial court considered the enhancing and mitigating factors and did not act arbitrarily.

The Defendant argues that without explicit reference to enh ancing and mit igating factors and sentencing principles in the record, the judgment is arbitrary per se . We disagree. This Court h as held that even where “the defendant is correct that the trial court did not make explicit findings of enhancement

and mitigating factors . . . [t]he lack of findings is no basis for holding the trial court in error.” Russell , 10 S.W.3 d at 278. Th erefore, even if the trial court did not refer to or mention sentencing principles o

r enhancing

and mitiga

ting fact ors when determining misdemeanor sentencing , there is no r

eversible er

ror so long a s the trial cou rt considere d said facto

rs.

In this case, the trial court chose to hold a separat e sentencing hearing. At that hearing, the court heard te stimony fro m the Defend ant and on e of the vi ctims in the case. The court al so heard argument from both the Defendant and the State regarding sentencing. The record on a ppeal contains little information concerning the facts underlying the convictions. Appare ntly, the Defendant

on numero

us occasion s exp osed hims elf to youn g female v ictims wh ile they were

visitors-3-

in his home. Prior to the h earing, the court revie wed two victim impact statements and the Defendant’s pre-sentence report.

The court, in de

nying the D efendant f

ull probatio n, said, wit

h regard to th

e Defendan

t’s attit ude, “S ome of your answers on the stand were very flippant as if you didn’t understand the consequences, significance of what has happened here.” The court went on to say,

. . . I hope during the nights that you spend here [sleeping a

t the jail, though on work re lease] th at somethi ng will co me over you. I really don’t think it has yet. I mean, I don’t think, based on your testimony today, that you u ndersta nd the pai n that you have caus ed some o f these people. I don’t think you have. I hope you do.

Based on the testimony of one of the vict ims that she had

been seekin g counselin g and psych iatric care, the court said, “I think Ms. Cooper has obviously been traumatized.” The court, e xplai ning its role in the se

ntencing pr

ocess, said , “The Cour

ts don’t fix

these types o f things. C ourt s try t o make amends and show punishment when they need to and show leniency when they ne e d to.” After discussing its belief th at the Defe ndant was n ot taking res ponsibility for his acti ons, the cou

rt stated, “And you think yo u’re over it. I hope you ar e. These types of offenses generally don’t go away that quick. I mean, you need to have some continued care. I hope you make it.” Regarding the nature of the Defendant’s three months’ incarceration, the court said, “I am not opposed to you getting wor

k release . . . . I don’t want your family to suffer monetarily if we can help it.” At the close of the hearing the trial ju dge sentenc ed the Defe ndant to fiv e consecutiv e sentence s of 11 months and 29 days at 75% with the Defendant to serve the first thr ee months of the firs t sentence on work rele ase.

We find that th

ere is suff

icient evide

nce in the rec ord to indica te that the tri al court did consider sentencing principles and enhancing and mitigating factors in d eterminin g the manner

of service of the Def

endant’s sen

tence. The t

rial court did not act ar

bitrarily, b ut gave spec ific reasons for its decision

based on the evi dence. We

conclude th at the trial ju dge acted wi thin his discretionary authority.
Accordingly, the judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE