# FILED April 20, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9805- CR-00229 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMA N, CLINTON E. KEY, ) JUDGE ) Appe llant. ) (Misdemeanor Sentenci ng)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF DAVI DSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : MAR Y GR IFFIN JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 1202 Stahlman Buildi ng Nashvill e, TN 37201 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 VICTOR S . JOHN SON Distri ct Attor ney General PAMELA A NDERSON Assistant Distri ct Attor ney General Washington Square, Suit e 500 Nashvill e, TN 37201-1649 OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 The St ate argue s that the Statement of Evidence filed by Defendant following his

Notice of Appeal is insufficient under Tennessee Rule of Appel late Procedure 24(c). We find that the Statement was filed with the trial court

within the 90-day

period as required. Defendan t hand-delivered

a copy of the Statement to the State. No objections by the Stateappear in the record; and pursuant to Tennessee Rule of App

ellate Pro

cedure 24(f), the Sta

tement became final upon i naction by

the trial c

ourt. Although, as the State argues, the S

tateme n t has not been specificall y “certified” by Defendantor Defendant’s counsel, we find (1) that Defendant has subst antially complied w

ith the requirements of Rule 24, and (2) that the proper place for the State’s objections was in the trial court, as the

trial court

was the pr

oper arbite r of any factual disputes between the State and Defendant. We consider the Statement of Evidence in lieu of a transcri pt of the evidence. -2- 

# OPINION

The Defendant, Clinton E. Key, appeals hi s sentences of t hirty days for disord erly condu ct; six mon ths for resis ting arrest; thirty d ays for cr iminal trespass; and e leven m onths , twenty -nine d ays for assa ult. Follo wing a jury trial, the trial c ourt ordered Defendant to ser ve the sentences consecutively in t he county jail , with r

elease eli gibility atseventy-f ive percent . Defendant ar gues that the trialcourt err

ed by imposing the maxi mum sentence on each convi ction and by orderin g the sen tences served c onsec utively.
Although the record do es not contain a transcri p t of the evidence presented to the j ury duri ng the tri al, the Defendant submitted a statement of the evidence. 1 These crimes were t he result of two sep arate con frontations with police officer

s—one in September of 1996 and theoth er i n February of 1 997. On both occasions, the Defendant apparently r esisted the effor

ts of policeofficers to take him into cu stody.

Defen dant, a multi ple m is demea nant, is not entitled to the pre sumptive minimum sentence. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Cr im. App. 1997); State v. Combs , 945 S.W.2d 770, 77 4 (Ten n. Crim. A pp. 199 6); State v.-3-

Boyd , 925 S.W .2d 237 , 244 (T enn. C rim. App . 1995); State v. Seaton , 914 S.W.2d 129, 13 3 (Ten n. Crim. A pp. 199 5); State v. Wi ll iams , 914 S.W.2d 940, 949 (Tenn . Crim. A pp. 199 5); State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Cri m. App. 1994 ).

In misdemeanor sentencing , the trial cour t retains the authority to place the defendanton probation either i mmediately or af ter a ti me of periodi c or continuousconfinement. Tenn. Code Ann. § 40-35-302( e). Misdemeanor sentencing i s designed to pr ovide thetrial court with cont inuing j urisdic tion and
a great deal of flex ibili ty. Furt hermore, our supreme court recently stated i n State
v. Troutman , 979 S.W.2d 271 (Tenn. 1998), that the t rial cour t’s fi ndings on the issue of i ncarcerati on need not appear i n the record: [W ]hile the better

practicei s to make findi ngs on the recor d when fixi ng a percentage of a defendant’ s sentence to b e serv ed in incar c eration, a trialcourt need onl y consider t he princi ples of sentencing and enhancement and miti gating fac tors in o rd er to com ply with the l egislat ive manda tes of the misdemeanor sentencing statute. Id. at 274.

With respect to

consecutive sentencing, Tennessee Code Annotated § 40- 35-115 provides that the t rial cour t may order mult iple sent ences to run
cons ecutive ly if the “defendant i s an offend er who se rec ord of c rimina l activity is extensive.” Ten n. Code A nn. § 40-35-1 15(b)(2).

At the Defendant’ s sentencing hearing, theonly prof fered mitigati ng proof relevant to sentencing was Defendant’s t estimony that he has “turned over a new leaf” by committing misdemeanors rather than “grand feloni es. ” The trial court2 Defendant was convi cted twice for burglary, onc e in 1973 and once i n 1985.
3 Defendant

has been convicted tw ice for driving on a revoked o r suspended license, once for po

ssess ion o

f s tolen pr operty, once for possession o f drug paraphernalia, once for disorderlyconduct, once for resisting a stop a nd f risk, twice for traffic offenses, once for criminal trespass, once for reckless endangerment, onc e for public intoxication, twice for shopli fting, three times for possession of drugs, tw ice for disturbing the

peace, and once for a weapons o

ffense. -4- commented on its co nside ration o f Defe ndan t’s prior re cord o f crimin al activ ity contained in the pres entence report, which i ncludes two felony convict ions, 2 nineteen misdemeanor convictions, 3 and arrests f or twenty- eight addi tional counts not resulting in convictions. T he report also reflects that a prior sentence of p robation for his first burglary wa s revoked. At the sentencing h eari ng, th e Defendant demonstrated nei ther remorse nor potentialfor rehabi litat ion, and he in fact suggested the poli ce officers sho uld be reprimanded for bringing t he char ges agai nst

him
.

We find the foregoing ev idence suff icient to sup port both t he length and
manner of service o f Defend ant’s sen tences fo r dis orderly conduct, res isting arrest, criminal trespass , and assau lt. We affirm the sentencesordered by t he trial court.

____________________________________ DAVID H. WELLES , JUD GE-5-

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE