# FILED
October 25, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST 1999 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9809-C C-00291 ) vs . ) Benton County ) DAVID W. FRAZEE, ) Honorable Julian P. Guinn ) Appellant. ) (Possession of Schedule VI ) Controlled Sub

stance) ) FOR THE APPELLANT: FOR THE APPELLE E: TERRY J. LEONARD PAUL G. SUMMERS Attorney at Law Attorney General & R eporter 126 W. Main Street P.O. Box 130 PATRICIA C. KUSSMAN Camden, TN 38320 Assistant Attorney G eneral 425 Fifth Avenue North Nashville, TN 37243 G. ROBERT RADFORD District Attor

ney General BETH BOSWALL Asst. Di strict Attorney General P.O. Box 686 Huntingdon, TN 38344

OPINION FILED: _____________

AFFIRMED

JAMES CURWOOD WIT T, JR., JUDGE2 OPINION
The defendant, David W. Frazee, appeals his Benton County Circuit Court conviction for possessi on of a Schedule VI controlled s ubstance, a Class A misdemeanor. See Tenn. Code Ann. § 39- 17-418(a) (1997). The trial court imposed a $250 fine and an eleven-month, 29-day jail sentence, si x month s of which is to be served in jail wit h the remain der to be served on supervis ed probation. In his appellate brief, the defendant raised two issues: (1) whether the convicting evidence was insufficie nt because the controlled subst ance was not properly made an exhibit to the forensic scientist’s testimony , and (2) whether the trial court erred in not imposing an alternati ve sentence. During oral argument, however, the defendant’s counsel conceded that there was no basis in the record for establishing his claim on the first issue. Accordingly, we have limited our re view to the sentencing issue and have found no error requiring reversal. Thus, we affirm the judgment of the trial co urt.

The defendant was prosecuted for the sale of marijuana on the ba sis of an August 21, 1997 undercover dru g purchase. The def endant acted as an intermediary between the undercover agent, who gave the defendant $125, and the defendant’s cousin, who accepted the money and gave the defendant a package
con taining an ounce of marijuana to deliv er to the agent. The defendant testified that he did not know that the mat erial in thepackage was a controlled substance. Based upon these facts, a jury convicted the defendant of simp le possession.

The trial court impos ed th e fine and the eleven-month, 29- day sentence on the same day the verdict was returned, despite

the defendant’s request for a dela y in sente ncing. The trial judge sa id, “I can always consi der motions to lessen the sentence later.” The defendant la termoved for a new trial an d a modification of the sentence. At the hearing on these motions, he presented court records of 70 general sessions cour t cases processed between 1993 and 1998 in3

which defendants were sentenced for possession of m arijuana. The average length of incarceration in those c ases was 25 days. At the conclusion of the hearing, the trial court modified the sentence so as to require six mo nths incarceration follo wed byfive months and 29 days super vised probation. The motion for ne w trial was denied.
Against this factual backdrop, we cons ider the defendant's sentencing challenge.

In determining whether the trial court has properly senten ced an individual, this court engages in a de novo review of the record with a pres umption that the trial court's determinations were correct. Tenn. C ode Ann. § 40-35-401(d) (1997). In conducting our de novo review, we must c

onsider the evidence at sentencing, the presentence report, the sentencing pri ncip les, the arguments of counsel, the statements of the defendant, the natur e and cha racteristics of the offense, anymitigating and enhancement fac tors, and thedefendant’s amenability to rehabilitation. Tenn. Co de Ann. § 40-35-210(b) (Supp. 1998) ; Tenn. Code Ann. § 40-35-103(5) (1997); Ashby , 823 S.W.2d at 1 68. On appeal, the appellant has the burden of showing that the sentence im posed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comm ents (1997); Ashby , 823 S.W.2d at 169.

In felony sentencing, the trial court has an affirmativ e duty to state in the record , either ora l ly or in writing, which enhancement and mitigating factors it found and its findings of fact. Tenn. Code Ann. § 40-35- 209(c) (1997); Tenn. Code Ann. § 40-35-210(f) (Supp. 1998); State v. Troutman , 979 S.W.2d 271, 274 (Tenn. 1998). In contrast, the

misdemeanor sentencing statute only requires that the trial court consider

the enhancement and mitigating factors wh en calculating the percentage of the sentence to be served "in actual confinement" prio r to "considerati on for work release, furlough, trusty status and related rehabilitative programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Tro utman , 97 9 S.W.2d at4

274.

A separate sentencing hearing is not mandatory in misde meanor cases, but the court is required to provide th e defendant with a reasonable op portuni tyto be heard as to the length and m anner of the sentence. See Tenn. Code Ann. §40-35-302(a) (1997). Misdemeanor sentences mus t be s pec ific and in accordance with the princ iples, pur p ose, and goals of the Crimi nal Sentencing Reform Act of 1989. Tenn. Code Ann. §§40- 35-104, 302 (1997); Tenn. Code Ann. §40-35-117 (1997 ); Sta te v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995) . The misdemeanor

offender must be sentenced to an authori zed determinant sentence with a percent age of that sentence designated for eligibility for rehabilitative programs. Generally, a percentage of not greater than 75% of the sentence should be fixed for a misdemeanor offender; however, a DUI offender may be required to
serve 100% of his sentence. Palme r , 902 S.W.2d at 393-94. In deter mining the percentage of the sentence, the court mus t consider enhancement and mitigating factors as well as the

legislative purposes

and principles related to the sentencing. Id

.
Upon service of that percentage, the administrative agency governing the rehabilitative programs determines which among the lawful programs available is appropriate. The trial court retains the authority to place the defendant on probation either immediately or after a term of periodic or continuous co nfinement. Tenn. Code Ann. §40 -35 -302(e). The legislatur e has encouraged courts to consi der public or privateagencies for probation super vision prior to directing super vision by the Department of Correcti on. Tenn. Code Ann. §40-35-302(f ). The governing statute provides that the trial c ourt has continuing juris diction in misdemeanor cases and a wide latitude of flexibi lity. The misdemeanant, unlike the felon, is not entitled to the presumption of a mini mum sentence. State v. Creasy , 885 S.W.2d 829 (Tenn. Crim. App. 1994).1 The record reflects that at least one other controlled substance sale

case was pending against the defen dant at the time of sentencing i n the present case. 5

Moreover, the provi si ons of the Tennessee Communit y Corrections Act of 1985 are not applicable to misdemeanants. See generally Tenn. Code Ann. § 40-35-106 (1997). Thus, the only sentencing alt ernatives available to misdemeanants

are the payment of a fine and some form of probation. See Tenn. Code Ann. § 40-35-104 (c) ( 1997).

In determining whether to grant probation, the reviewing court considers “the circumstances of the offense, the defendant’s cri minal record, the defendant’s social history and present conditi on, the need for deterrence, and the best interest of the defendant and the public.” State v. Goode , 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

In the case sub judice , the gravamen of the de fendan t’s sentencing complaint

is that h e shou ld have received straight probation, or in any event, no
more than the average 25 days of confi nement imposed upon ot herdefendants convicted of the same cri me.

At the time of sentencing, Frazee had no prior criminal convictions; 1 ho wever, the trial court pointedly found that Frazee testified u ntruthfully whe n h e claimed not to have known that the package he exchanged for $125 contained marijuana. In response to the defendant’s claim of ignorance, the trial judge asked, “Do you think everybody in this courtroom is ju st a bumbling idiot? . . .Mr. Frazee, you know, sometimes the tr uth just serves youso much better.” As we have often observed, a defendant’s lack of cr edibili ty is an appropriate consideration in determining suitability for probati on because it reflects on the defendant’s potential for rehabilita tion. See, e.g. , Goode , 956 S.W.2d at 527; State v. Chestnut , 643 S.W.2d 343, 353 (Tenn. Crim. App.1982). In the present case, the trial court made6

a credibility assessment that is supported by the record and to which we must defer. See State v. Raines , 882 S.W.2d 376, 383 (Tenn. Cr im. App . 1994) ( credibility assessmentsare entrusted to the trial cour t because that court has the opportunity to hear and see the witnesses i n person and to judge the ir “ma nner and demeanor”). Given the defendant's lack of truthfulness, the trial

court appropriately denied straight probation.

Th us, we take up review of the s entence actually imposed. I n th i s respect, we are initially ham pered b y the trial court's fai lure to specify the percentage of service in confineme nt in its judgment form, as w ell as by the somewhat ambiguous statement s the court made at the sentenci ng hearing.
Considering first the failure to st ate a percentage of serv ice in the judgmentform, we observe that as a general propositio n, “[i]fno percentage is expressed in the judgment, the percentage shall be considered to be zer o percent (0%).” Tennessee Code Annotated § 40-35-302(d) (1997). However, ”[w]hen this court has been faced with a transcript of th e sentencing hearingclearly indicating the trial court’s intenti on that the defendant’s percentage is not zero percent, . . . we have deferred to the trial cou rt’s expr ess pronouncement as reflec ted in the transcript.” State v. Dion Andres Russe ll , No. 03C01-9803-CR-00092, s lip op. at 15 (Tenn. Crim. App., Knox ville, Apr. 7, 1 999) (em phasis in original), applic. for perm. app. filed (Tenn. June 7, 1999); see also State v. Rickey Hailey , No. 02C01- 9705-CR-00198, slip op. at 6(Tenn. Crim. App., Jac kson, May 14, 1998); State v. Roscoe C. Smith , No. 01C0 1-9502-CR-00031, slip op. at 3 (Tenn. Crim. App., Nashville, Oct. 12, 1995). In the present case, the record clearly dem onstrates that trial court intended to impose ja il time for a portion o f the defendant's sentence. Thus, we may

defer to the trial court's express pronouncements as revealed i n the transcript.
In this regard, the trial court said, “[s]ix m onths of [the sentence] will7

have to be served in confinement. ” Given the fact that the maxi mum percentage of service in a non-DUI misdemeano r is 75 percent, the questions presented are what perce nta ge was intended and whether the per centage is applied to eleven months and 29 days or to six months.

We believe that the record as a whole reflects that the s entence the trial judge intended to impose was el even months and 29 days. Even thoug h th e probation that the trial court awarded and that is authorized by Code subsecti on 40- 35-302(e) does not equate to eligibility for rehabilitative program s that is described in subsection (d), we disc ern that the trial court’s intent was to “fix a percentage of the sentence” by expressing the confinement time in terms of mo nths rather than a numerical percentage. See Tenn. Code Ann. § 40-35-302(d) (1997) (emphasis added). Hence, the court essentially established an ele ven- month, 29 day sentence to be served in confinement at 50 percent. This interpr etati on as sures the confinement

of six months which the trial court articulated. The grant of probation after the six months, or 50 percent, is served renders the eligibility for rehabilitative servicessuperfluous, but we believe the above interpretation of the record comports with the expressed intent of the trial judge. We take this opportunity to point out that
an appellate court can more precisely fathom the trial court’s intenton such an issue if, in the trial court’s sentencing regimen and its judgment, it squarely and expressly addresses the section 40-35- 302(d) percentage issue.
Finally, we reach the question of whether this sentence is appropriate given the facts of this case. We begin by rejecting the argument that Frazee should receive no more than 25 days in jail because that was the average jail sentence imposed in 70 recent, local cases. Sentencing issues m ust be determined by the facts presented in each individual case. State v. Moss , 727 S.W.2d 229, 235(Tenn. 1966). “Any case-by-case approach wi l l embody discretion, si nce all of the appropriate facts and circumstances must be weighed and considered as a whole for the disposition of each case . . . .” Id . As we observed in State v. Michael Leon8

Chambers , No. 01C01-9505-CC-00143, s lip op. at 6 (Tenn. Crim. App., Nashville, Jun e 20, 1996), "[t]here is no requi rement for equal sentences am ong codefendants." By analogy, this principle is equally applicable to the situation at bar.

Upon our de novo

review, we conclude that the trial court followed the requirements

of the sentencing law, and it s determination is suppor te d by the record. The defendant has failed to carry his burden of showing that the sen tence imposed is improper. See Tenn. Code Ann. §40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

Accordingly, we affirm

the judgment of the trial c ourt.

______________________________ JAMES CURWOOD WIT T, JR., JUDGE

CONCUR:

_____________________________________ DAVID H. WELLES, JUDGE

_____________________________________ JERRY L. SMITH, JUD GE