# FILED
July 30, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE MAY 1997 SE SSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9608- CR-00318

) ) Hawkins

County v. ) ) Honorable James E. Beckner, J udge ) TIMMY LY NN CASTLE, ) (Senten cing) ) Appellant. ) For the Appell ant : For the Appell ee : Greg W. Eichelman Charles W. Burson Distric t Public Defender Attorney Gen eral of Tennessee and and R. Russell Mattocks Georgia Bl ythe Felner Assistant Publ ic Defender Assistant Att orney Gener al of Tennessee 1609 CollegePark Dri ve, Box 11 450 James Roberts on Parkway Morristow n, TN 37813-1618 Nashvil le, TN 37243-0493 C. Berkeley Bell, Jr. Distric t Attorney General 113J W. Church Street Greenevil le, TN 37743 and Douglas Godb ee Assistant D istrict A

ttorney Gener

al Hawkins County Courthouse Rogersv ille, TN 37857

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Timmy Ly nn Castle, was convi cted by a jury i n the Hawk ins County Criminal Court for dri ving w ithout avalid driver’s license, a Class B misdemeanor. The trial cour

t sentenced the defendant to six mo nths in th e cou nty ja il to s erve s even tyfive percent before bei ng eligi ble for rel ease. The tri al co urt a lso im pose d a f ine o f fi ve hundred dollars. In this a ppeal as of right, the def endant contends th at the trial court improperly considered enhan cement and mitig ating factors in senten cing him to the maximum sentence. We disagree and affirm the tri al court’s judgment of conv iction.

The proof at trial s howed that the defen dant was stopped by Officer Chris Jones of the Mount Carmel Police Depar tment on November

3, 1995, for speedin g. The defendant was dri ving s ixty- one miles per ho ur in a forty -five-mil es-per-hour speed zone. The defendant did not have a driver’s license in his poss ession. Officer Jones’ check of the defendant’s driv ing histor y revealed that the defendant di d not have a v al id driv er ’s license. The defendant admitted at tr ial that he under stood that it w

as against t he law to drive without a driver’ s license but that he never took the t est t o obt ain a licen se an d dro ve anyway.

The specific data r eport reflects that the defendant has si x prior convicti ons foroffenses including drivin g on a revoked or suspended license and dr iving without a valid driver’s licence. The defen dant’s prior criminal history also includes conv ictions for public intoxicat ion, possession of mar ijuana, drivin g under the i nfluence, leavi ng the scene of an accident, several traffic viol ations, and seven counts of burgl ary. The defendant al so has convicti ons as a juveni le for crimin al trespass. The repo rt also shows that, while on probation, the defendant committed theoffenses of speeding and dr iving on a suspended license in April 1992 and the offenses of failing to yield and drivi ng on a revoked license in November 1994 . Also, the defendant was charg ed and convic ted of dr ivin g on a3

revoked lic ensewhi le o n bon d for the p res ent case. The repor t fu rther st ates that the defendant has a histor

y of alcohol a buse.

In sentencing the defendant to the maximum sentence of six months in the county jail wit h a se ve nty-fiv e percent releas e eligibi lity, th e trial cour t considered t hree enhancement factors and determined that eac h should be gi ven great weight : (1) the defendant has a previous historyof criminal convictions or criminal behavior; (2) the defendant has a previous history of unwilli ngness to co m plywith the conditions of a sentence involving release in the community; and (3) the crime was committed under circumstances under which the potential for b odily in jury to a victim w as great. See T.C.A. § 40-35- 114(1), (8) and (16). In applying factor (16), t he trial cour t stated: Certa inlyyou can dr ive w ithout a val id license, without speedi ng; but when you add speeding to it, it certainly creates a danger to peopl e on the highway. And speeding is probably one of the greatest cause[s] of death and injur y that we have in this countr

y . . . . The trial court found that no mitigating factors applied. In its decision, the trial court stated that it considered the s entencing pur poses and princ iples under t he act and found the defendant’s lack of potential for re habilitation to be a signi ficant factor in i ts decision to deny

alternative sentencing and to impose the max imum sentence. The court stated th at it denied pr obation because of the d efendant’s prior criminal r

ecord, his inabili ty to abide by conditi ons of release, and his commissi on of offenses while o n bond for the present offense. It also noted t hat the defendant had been g iven many opportunities to change but had continued to v iolate the law

.

Appellate review of sentencing is de novo on the record with a presumption that t he trial cour t's determinati ons are correct. T.C.A. §§ 40 -35-401(d) and -402(d). As the SentencingCommission C omments to these sec tions note, the burden is now on the appealing party to show that the sente ncing is improper. This4

means that if the trial court f ollowed th e statu tory sente ncing pro cedure , made findin gs of fact that are adequately suppor ted in the reco rd, and gave due considerat ion and proper wei ght to the factor s and princi ples that are r elevant to s entencing under the 1989 Sentencing Act, we may not disturb the se ntence even if a diff erent result were preferred. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991).

Howeve r, "the presumpti on of correctness which ac companies the tr ial court's acti on is conditi oned upon the affirmative showing in the recor d that the tria l court conside red the sentenci ng princi ples and all r elevant facts and circumstanc es." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In t his respect, for the purpose of meaningful appell ate review ,

the trial court must pl ace on the record its reasons for ar riving at the final s ente ncing deci sion, identify the mitigati ng and enhancement factors found, state t he specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancementfactors have been evaluated a nd balanced in determinin g the sentence. T.C. A. §§ 40 -35- 210(f) (1990). State v. Jone s , 883 S.W .2d 597, 599 (Tenn . 1995).

Also, in conduc

ting a de novo review , we must consider (1) the evidenc e, if any, recei ved at the tr ial and sentenci ng hearing , (2) the presentence report , (3) the principles of sentencing and argum ents as to sentencing alternatives, (4) the natu re and characteri stics of the cr iminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement t hat the defendant made on his own behalf and ( 7) the potential for re habilitation or treatment. T.C .A. §§ 40-35-102, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

In misdemeanor sent encing, a se parate sentenci ng hearing is not mandatory, but the trial court is req uired to all ow the part ies a reasonabl e opportunity to be heard on the q uestion of lengt h of the sentence and the manner in wh ich it is to be5

served. T.C .A. § 40-35-302( a); State v. Pal mer , 902 S.W.2d 391, 393 (Tenn. 1995). The sentence must be s pecific and consi stent wit h the purposes and principles of the Criminal Se ntencing Refor m Act of 1989. T.C.A. §40-35-302(b) ; Palmer , 902 S.W.2d at 393. A percentage of n ot greater than seventy-five percent of the sen tence should be fixed for ser

vice, after which the defendant becomes elig ible for “work release, furlough, trusty status and related reha bilitative programs.” T.C.A. § 40-35- 302(b).

The misdemeanant, unlik e the felon, is not entitled to the presumption of a minimum sentence, State v. Creasy , 885 S.W .2d 829, 832 (Tenn . Crim. App. 1994), although the s entence imposed shoul d be the least s evere measure necessary to achieve the sentencing pur pose. See T.C.A. § 40-35- 103(4). However, in determining the percentage of the sentence to be served in actual conf inement, the court mu st consider enhanc ement and mitigat ing factors a s well as the purposes and principl es of the Criminal Sentencing R eform Act of 1989. T.C.A. § 40-35-302(d) ; Palmer , 902 S.W.2d at 393. The court should not i mpose such percent ages arbitr arily. T.C.A. § 40- 35-302(d).
On appeal, the defendant as serts that the trial cour t erroneously

applied enhancement factors i n its sentenci ng decisio n. Although headmits that factor (1) applies to some degree, he con tends that the extent of the convictions and the nature of the off enses do not warrant the weight given to the factor by the trial court. However, the weig ht to be afforded an ex isting factor is left to the t rial court ’s discre tion as long as it comp lies with th e purpo ses and principle s of the 1989 Se ntenci ng Act and its find ings are adequately

supported by

the record. T.C.A. § 40-35-2 10, Sentencing Commission Comments; Ashby , 823 S.W.2d at 169; Moss , 727 S.W .2d a t 237 . The proo f sh ows that the defendant has at least six convicti ons relating to his dri ving w ithout a lic ense. He also has s everal othe r convic tions for driv ing-rel ated offenses as wel l as felony convicti ons for seven counts of burglar y. The tri al court’s application of the factor and6

its decision to give it great weight are overwhelmingly supported by the record in this
case.

The defendant also clai ms that the tri al court err ed by consi dering factor (8), a prev ious histor

y of unwil lingness t o comply w ith conditions of a sentence involving release into the community. We disagree. The evidenc e shows that the defendant
comm itte d at l east fou r drivin g-rela ted o ff ense s while on pr oba tion . More over, a thi rtyday sentence imposed in 199 1 was suspended upon conditio n that he apply for a driver’ s license. Howeve r, the defendant testi fied at the trial that he had never taken the test for his driver’ s license. Under these ci rcumstances, we hold that factor (8) applied and that t he trial cour t was enti tled to giv

e it substanti al weig ht.

Next, the de fendant contends that the record does not support the application of factor

(16), the commi ssion of the cri me under circ umstances under which the potential for bodi ly injur y to a v ictim is g reat. We are inclined to ag ree under the circumstan ces in this case. Officer Jone s testified that he observed t he defendant driving sixteen miles over a forty-five mile speed limit. However, he admitted that he did not observe any other pr oblem with the defendant’s dri ving. Also, there w as no evidence that

there were any other cars on the road at the time of the offense. We do not believe that speeding, alone, warrants the factor’s application in the con text of this case. Other t han through mere speculation, there are ins ufficient facts to demonstr ate that a great potential for bodi ly injur y to a “v ictim” res ulted from the defendant’s drivin g without a l icense. Therefore, the trial court should not have conside red factor (16) in its sentencing dec ision.

The defen dant also claims that the trial court sho uld have considered his cooperation and admi ssion of guil t as an applic able mitigat ing factor. See T.C.A. § 40- 35-113(13). As the state cor rectly points out, thoug h, the defendant pled not guilty to7

the crime and deman ded a jury trial. In any event, the fact that he adm itted in his testimony that he drove w ithout a lic ense is insi gnificant in the context of hi s testimony that he never

applied for, or

had, a driver’s lic ense.
Despite the tr ial court’ s inappropri ate use of factor (16) , the other applicable enhanc ement factors just ify the sentence imposed by t he trial cour t under the circumstan ces presented i n this case. In fact, the recor d indicates th at the defendant ’s low potential for rehabilitation borders on incorrigibility. For these reasons, we hold that

the defendant has failed t o establish th at the sentence i mposed by the tr ial court was improper.

In considerati on of the foregoing and the record as a whole, the judgment of convictio n of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Joe B. Jones, Pr

esiding Ju dge

Curwood W itt, Jud ge