### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. LEWIS ED WARD ALLEN
Direct Appeal from the Circuit Court for Montgomery County No. 39246, John H. Gasaway, III, Trial Judge

No. M1998-00213-CCA-R3-CD - Decided May 19, 2000

The appellant was convicted at a bench trial of DUI,

third offense. Pr

ior to his trial,

he entered gui

lty pleas to driving on a sus

pended license -

seventh offense

, evading arre

st and speedin g. On appeal, the appellant con tends: (1) the sentences imposed by the trial court for DUI , third, driving on suspended license, seventh offense, and evading arrest are excessive and (2) the trial court’s order of consecutive se

ntencing was imp

roper. After re

view, we affirm

.
Tenn. R. App. P. 3(b) A ppeal as of Right; Judg

ment of the Circ

uit Court is Affir

med.

G LENN , J. delivered the opinion of the court, in which R ILEY , J., and A CREE , S P .J., joined. Russel A. Church, Clarksville, TN, for the appellant, Lewis Edward Allen.

Paul G. Summers, A ttorne y General and Re porter, Michael

Moore, Solicitor Ge

neral, Clinton J. Morgan, Assistant Attorney General, J ohn Wesley Carney, Jr., District Attorney General, and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The appellant, Lewis Edward Allen, was indicted by a Montgomery County Grand Jury on charges of DUI, third offense, reckless driving, driving on revoked license, se venth offense, speeding, and evading arrest. He enter ed guilty pleas to driving on revoked, seventh offense, speeding, and evading arrest. At a bench trial, the trial court found the a

ppellant guilty

of DUI, third offense, but found the appellant not guilty of reckl ess dr ivin g. Fol lowin g his c onvic tion s for D UI, third offense, driving on revoked license, seventh offense, and evading arrest, the trial court imposed sentences of eleven months and twenty-nine days for each offense. The release percentage was f ixed at seven ty five perce nt for DUI, t hird, and driving on revoked license, seventh; the percentage for evading arrest was fixed at thirty percent. The sentences were or dered to be served

concurrent, but consecutive to an outstanding sentence for aggravated assault. The appellant now appea ls the sentencing decision of the trial court, contending (1) that his sentences are excessive and (2) that

the-2-

trial court erred by

ordering that th

ese misdemeanor sent

ences be serve

d consecutively

to his felony sentence. After review, w

e affirm the sent

encing decisio

n of the trial cour

t.

BACKGROUND

The “Statement of the Evidence” filed by defense counsel pursuant to Tenn. R. App. P. 24(c) provides the following background:

On September 9, 19 97, at approximately 11:00 p.m., Officer Bobbie Dixon of the Clarksville

Police Department was conducting stationary radar on Highway 41A. He observed a vehicle being driven by the Appellant traveling 67 mph in a 45 mile per hour zone. . . . The officer further testified that he believed the Appellant had sped up as the officer tu

rned around in

pursuit as he was going much faster than 70 to try to catch up.

The Appellant’s vehic

le turned on to a side road and pulled in to a driveway on the side road. The Appellant abandoned the vehicle and fled to abrush pile where the officer retrieved him all

scratched up. He

failed four sobr

iety tests. . . . In addition, the Appellant had blood shot eyes, slurred speech and an odor of alcohol about his person. . . . The officer also testified that the [appellant] was belligerent and cursing during the booking process.

The Appellant testified . . . that after he had gotten off work . . . he had gone fi shing. He had picked up a six pa

ck of twelve ounc

e beers. He dra

nk four full

beers and part of a fifth beer whil

e fishing. . . . He testified that he was speeding because he had stayed out later

than he planned a

nd was expecting h

is wife to be upset w

ith him.

.

. . He admitted that he ran from the officer because he k new the re was an outstanding warrant for his violationof probation on a felony charge. At the time of this bench trial, the a

ppellant had bee

n found in violation of that suspended sentence and was serving a five year TDOC sentenc e.

. . . . The proof at the hearing consisted of certified copies of convictions . . . and the testimonyof the Appellant’ s wif e wh o testified he was a good provider and she
nee ded his assistance. The Court ordered the Defendant to serve an eleven mon t h twenty-nine

sentence at 75% as to each of thes e charges. The Court ordered the sentences to run concurrently with each other but consecutively with the violation of probation he was servi ng.-3-

The court found as circumstances that justified a consecutive sentence that the Appellant had an extensive criminal history . . . and that the appellant had committed this offense while on probation for an aggravated assault charge

. . . .

In addition to the “St

atementof the Evidence,” the record includes twenty-two cer tified copies of prior convictions

of the appellant.
ANALYSIS

The appellant compla

ins that t he trial court impose d an excessive sentence for his convictions and that the trial court erroneously ordered the sentences to run cons ecutively to an outstanding f elony con vic tio n. S peci fic all y, th e app ell ant argu es t hat his sen ten ce “w as ex cess ive ly s evere ” because the underlying

facts were not “horrendous” or indicative of “dangerous driving behavior” and that his DUI “w

as essentiall

y, a gar den variety

DUI..” When a

n appellant compla

ins of his sentence on appeal, this court conducts a de novo review coupled with a presumption that the trial court’s sentencing det

erminations are c

orrect. Tenn. Co

de Ann. § 40-35-40 1(d)(1997). This presumption is conditioned upon an affirmative showing that the trial court considered the relevant sentencing principles and all pertinent facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991). Regardless of whether the presumption of correctness is applied, the burden of showi ng the impr opriety of the sentence is on the appealing party . Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401. A. Length of Sentence

Misdemeanor

sentencing i s governed by Ten n. Code Ann . § 40-35-3 02(1997). Although otherwise entitled to the same

considerati

ons under the Sentencing Reform Act, unlike a felon, a misdemeanant

is not entitled to the presumption of a minimumsentence. See State v. Seaton , 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995) (citation omitted). Moreover, as a s entencing hea

ring is notmandatory, see Tenn. Code Ann. § 40-35-302 (1997) , trial courts are not required to expl

icitly place their findings on the record. We also r ecognize that a m

isdemeanor sente

nce, as opposed to
a felony sentence, contains no sentence range. Accordingly, in misdemea nor cases, the trial judge, who is able to observe first hand the demeanor and responses of the defendant wh

ile testifying , must be granted discretion in arriving at the appropriate sentence.

Add iti ona lly, we are cognizant that one of the offenses for which the appellant was convicted was DUI, third offense. See generally Tenn. Code Ann. §55-10-401 and § 55-10-403(m) (1998). Our legislature has provided that a defendant convicted of third offense, DUI , “. . . shall be confined in the county jail . . . for not less than one hundred twenty (120) days nor more than eleven (11 ) months and twenty

-nine (29) day

s. . . .” Tenn. Code

Ann. § 55-10-403(

a)(1). Furthe

rmore, “all persons sentenced under subsection (a) shall, in addition to t he service of at least the minimum sentence, be required to serve the difference between the time actually served a nd the maximum sentence on probation.” Tenn. Code Ann. § 55-10-403(c). Thus, the length of a defendant’s sentence1 A DUI offender, unlike other misdemeanor offenders, can be sentenced to serve the

entire sentence imposed, or 100%. Sta te v. Pa lmer , 902 S.W.2d 391, 393-94 (Tenn. 1995). Compare Tenn. Code Ann. § 40-35-302(d) (1997) (maximum percentage is 75%).
-4- for a DUI conviction is eleven months, twenty nine day s. See generally State v. Troutm an , 979 S.W.2d 271, 273 (Tenn. 1998). In effect, the DUI statute manda tes a maximum sentence for a DUI conviction with the only function of the t rial co urt being to determine what period above the minimum period of incarceration established by statute, if any , is to be suspended. See Troutman , 979 S.W.2d at 273; State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996), perm. to appeal denied(Tenn. 1997). Thus, the trial court’s imposition of a sentence of eleven months, twenty-nine days is mandated by our legislature and is not improper.

The sentencing court

must also determine the percentage of the sentence which the defendant shallserve. 1 Tenn. Code Ann. § 40-35-302(d). Upon service of that percentage, the administrative agency governing the

rehabilitative pr

ograms dete

rmines which among the lawful programs avai lable is appropriate. I

n determining the

percentage o

f the sentence, t

he trial court m

u st consider enhancement

and mitiga ting fac tors as well as the legislative pur

poses and princip

les related to sentencing. See Troutman , 979 S.W.2d at 273-274. T he Statement of the Evidence makes brief reference to the fact that a sentencing hearing on the three challenged sentences was conducted by the trial court. Indeed, the appellant asserts in his brief:

The state introduced a number of certified c o nvictions (22) fr om courts in Montgomery

County. A

number of them were for driving while his privileges were revoked by the state. The Appellant can not, and does not assert that either of the two
reas ons sta ted by th e Co urt for the sen ten cin g do n ot a ppl y.
In observance of the

l ess stringent procedures attached to misdemeanor sentencing, and following de novo review of a sparse and marginally adequa te sentencing record, we canno t conclu de that the release percentage imposed by the trial c ourt in each of the three challenged sentences was arbitrarily imposed. See Troutman , 979 S.W.2d at 274. Thi s issue is without mer

it.
B. Consecutive Sentences The appellant also contends that the court erred by ordering the misdemeanor sent

ences in the present case to be served consecutively to the felony sentence for which the appellant w as on probation at the time the offenses were committed. The appellant has waived this issue for failure to present any argument and for failure to cite to author ity. T.R.A.P. 27(a)(7), (h); Tenn. Ct. Crim. R. App. 10(b). This

court will not construct argument on behalf of the appellant. Notwithst anding, the record suppo

rts the trial court’s imposition of consecutive sentencing based upon an extensive criminal history and that the present offenses were committed while the appellant was on probation for a felony offense. See generally Tenn. Code Ann. § 40-35-115(b)(2 ) and (b)(6) (199 7). This issue is without meri

t.-5-

The appellant has not met his burden of showing the impropriety of the sentences imposed by the trial court. Accordingly , the judgment of the trial court is affirmed.