        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST 1999 SESSION
                                                 FILED
                                                  October 25, 1999

                                                Cecil Crowson, Jr.
STATE OF TENNESSEE,              )
                                               Appellate Court Clerk
                                 )
           Appellee,             )   C.C.A. No. 02C01-9809-CC-00291
                                 )
vs.                              )   Benton County
                                 )
DAVID W. FRAZEE,                 )   Honorable Julian P. Guinn
                                 )
           Appellant.            )   (Possession of Schedule VI
                                 )   Controlled Substance)
                                 )

FOR THE APPELLANT:                   FOR THE APPELLEE:

TERRY J. LEONARD                     PAUL G. SUMMERS
Attorney at Law                      Attorney General & Reporter
126 W. Main Street
P.O. Box 130                         PATRICIA C. KUSSMAN
Camden, TN 38320                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     G. ROBERT RADFORD
                                     District Attorney General

                                     BETH BOSWALL
                                     Asst. District Attorney General
                                     P.O. Box 686
                                     Huntingdon, TN 38344




OPINION FILED: _____________



AFFIRMED



JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION


              The defendant, David W. Frazee, appeals his Benton County Circuit

Court conviction for possession of a Schedule VI controlled substance, 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, six months of

which is to be served in jail with the remainder to be served on supervised

probation. In his appellate brief, the defendant raised two issues: (1) whether the

convicting evidence was insufficient because the controlled substance was not

properly made an exhibit to the forensic scientist’s testimony, and (2) whether the

trial court erred in not imposing an alternative 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 review

to the sentencing issue and have found no error requiring reversal. Thus, we affirm

the judgment of the trial court.



              The defendant was prosecuted for the sale of marijuana on the basis

of an August 21, 1997 undercover drug purchase. The defendant 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

containing an ounce of marijuana to deliver to the agent. The defendant testified

that he did not know that the material in the package was a controlled substance.

Based upon these facts, a jury convicted the defendant of simple possession.



               The trial court imposed the fine and the eleven-month, 29-day

sentence on the same day the verdict was returned, despite the defendant’s request

for a delay in sentencing. The trial judge said, “I can always consider motions to

lessen the sentence later.” The defendant later moved for a new trial and a

modification of the sentence. At the hearing on these motions, he presented court

records of 70 general sessions court cases processed between 1993 and 1998 in



                                          2
which defendants were sentenced for possession of marijuana. The average length

of incarceration in those cases was 25 days. At the conclusion of the hearing, the

trial court modified the sentence so as to require six months incarceration followed

by five months and 29 days supervised probation. The motion for new trial was

denied.



              Against this factual backdrop, we consider the defendant's sentencing

challenge.



              In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption

that the trial court's determinations were correct. Tenn. Code Ann. § 40-35-401(d)

(1997). In conducting our de novo review, we must consider the evidence at

sentencing, the presentence report, the sentencing principles, the arguments of

counsel, the statements of the defendant, the nature and characteristics of the

offense, any mitigating and enhancement factors, and the defendant’s amenability

to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1998); Tenn. Code Ann.

§ 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal, the appellant has

the burden of showing that the sentence imposed is improper. Tenn. Code Ann. §

40-35-401(d), Sentencing Comm'n Comments (1997); Ashby, 823 S.W.2d at 169.



              In felony sentencing, the trial court has an affirmative duty to state in

the record, either orally 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 when calculating the

percentage of the sentence to be served "in actual confinement" prior to

"consideration for work release, furlough, trusty status and related rehabilitative

programs." Tenn. Code Ann. §§ 40-35-302(d) (1997); Troutman, 979 S.W.2d at

                                          3
274.



              A separate sentencing hearing is not mandatory in misdemeanor

cases, but the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. See Tenn.

Code Ann. §40-35-302(a) (1997). Misdemeanor sentences must be specific and

in accordance with the principles, purpose, and goals of the Criminal Sentencing

Reform Act of 1989. Tenn. Code Ann. §§40-35-104, 302 (1997); Tenn. Code Ann.

§40-35-117 (1997); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The

misdemeanor offender must be sentenced to an authorized determinant sentence

with a percentage 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. Palmer, 902 S.W.2d at 393-94. In determining the

percentage of the sentence, the court must 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 confinement.

Tenn. Code Ann. §40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. §40-35-302(f). The governing

statute provides that the trial court has continuing jurisdiction in misdemeanor cases

and a wide latitude of flexibility. The misdemeanant, unlike the felon, is not entitled

to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829

(Tenn. Crim. App. 1994).




                                          4
              Moreover, the provisions of the Tennessee Community Corrections

Act of 1985 are not applicable to misdemeanants. See generally Tenn. Code Ann.

§ 40-35-106 (1997).        Thus, the only sentencing alternatives 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 criminal record, the

defendant’s social history and present condition, 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 defendant’s sentencing

complaint is that he should have received straight probation, or in any event, no

more than the average 25 days of confinement imposed upon other defendants

convicted of the same crime.



              At the time of sentencing, Frazee had no prior criminal convictions;1

however, the trial court pointedly found that Frazee testified untruthfully when he

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 just a bumbling idiot? . . . Mr. Frazee,

you know, sometimes the truth just serves you so much better.” As we have often

observed, a defendant’s lack of credibility is an appropriate consideration in

determining suitability for probation because it reflects on the defendant’s potential

for rehabilitation. 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 made




       1
            The record reflects that at least one other controlled substance sale
case was pending against the defendant at the time of sentencing in the present
case.

                                          5
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. Crim. App. 1994) (credibility

assessments are entrusted to the trial court because that court has the opportunity

to hear and see the witnesses in person and to judge their “manner and

demeanor”). Given the defendant's lack of truthfulness, the trial court appropriately

denied straight probation.



              Thus, we take up review of the sentence actually imposed. In this

respect, we are initially hampered by the trial court's failure to specify the

percentage of service in confinement in its judgment form, as well as by the

somewhat ambiguous statements the court made at the sentencing hearing.



              Considering first the failure to state a percentage of service in the

judgment form, we observe that as a general proposition, “[i]f no percentage is

expressed in the judgment, the percentage shall be considered to be zero percent

(0%).” Tennessee Code Annotated § 40-35-302(d) (1997). However, ”[w]hen this

court has been faced with a transcript of the sentencing hearing clearly indicating

the trial court’s intention that the defendant’s percentage is not zero percent, . . . we

have deferred to the trial court’s express pronouncement as reflected in the

transcript.” State v. Dion Andres Russell, No. 03C01-9803-CR-00092, slip op. at

15 (Tenn. Crim. App., Knoxville, Apr. 7, 1999) (emphasis 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., Jackson, May 14, 1998); State v.

Roscoe C. Smith, No. 01C01-9502-CR-00031, slip op. at 3 (Tenn. Crim. App.,

Nashville, Oct. 12, 1995). In the present case, the record clearly demonstrates that

trial court intended to impose jail time for a portion of the defendant's sentence.

Thus, we may defer to the trial court's express pronouncements as revealed in the

transcript.



              In this regard, the trial court said, “[s]ix months of [the sentence] will

                                           6
have to be served in confinement.” Given the fact that the maximum percentage

of service in a non-DUI misdemeanor is 75 percent, the questions presented are

what percentage was intended and whether the percentage is applied to eleven

months and 29 days or to six months.



              We believe that the record as a whole reflects that the sentence the

trial judge intended to impose was eleven months and 29 days. Even though the

probation that the trial court awarded and that is authorized by Code subsection 40-

35-302(e) does not equate to eligibility for rehabilitative programs that is described

in subsection (d), we discern that the trial court’s intent was to “fix a percentage of

the sentence” by expressing the confinement time in terms of months rather than

a numerical percentage. See Tenn. Code Ann. § 40-35-302(d) (1997) (emphasis

added). Hence, the court essentially established an eleven-month, 29 day sentence

to be served in confinement at 50 percent.           This interpretation assures 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

services superfluous, 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 intent on 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 must 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 will embody discretion, since 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 Leon

                                           7
Chambers, No. 01C01-9505-CC-00143, slip op. at 6 (Tenn. Crim. App., Nashville,

June 20, 1996),     "[t]here is no requirement for equal sentences among co-

defendants." 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 its determination is supported by the

record. The defendant has failed to carry his burden of showing that the sentence

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 court.




                                           ______________________________
                                           JAMES CURWOOD WITT, JR., JUDGE




CONCUR:




_____________________________________
DAVID H. WELLES, JUDGE




_____________________________________
JERRY L. SMITH, JUDGE




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