         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 24, 2004

                   STATE OF TENNESSEE v. FRED L. MAINES

                 Direct Appeal from the Criminal Court for Sullivan County
                          No. S47,225    Phyllis H. Miller, Judge



                                 No. E2003-02397-CCA-R3-CD
                                        April 16, 2004

The appellant, Fred L. Maines, was indicted by the Sullivan County Grand Jury for driving under
the influence, fourth offense, a Class E felony. The appellant subsequently pled guilty to driving
under the influence, first offense, a Class A misdemeanor, with the sentence to be determined by the
trial court. Following a hearing, the trial court sentenced the appellant to eleven months and twenty-
nine days confinement in the county jail, to be served at seventy-five percent. The trial court also
imposed a three hundred fifty dollar ($350) fine and suspended the appellant’s driver’s license for
one year. On appeal, the appellant contends that the trial court erred by ordering the appellant to
serve seventy-five percent of his sentence in confinement. Upon review of the record and the
parties’ briefs, we affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN
E. GLENN , JJ., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal), and Michael LaGuardia, Kingsport, Tennessee (at
trial), for the appellant, Fred L. Maines.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Teresa Murray-Smith and Robert Montgomery,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        The appellant’s guilty plea was based upon the following facts as recited by the State at the
guilty plea hearing. On March 30, 2002, Kingsport Police Officer Matt Cousins stopped the
appellant’s vehicle after observing the appellant driving in an erratic manner. When Officer Cousins
approached the appellant’s vehicle, he observed the appellant attempting to hide beer bottles behind
the seat. Upon smelling the odor of alcohol about the vehicle and on the appellant’s breath, Officer
Cousins asked the appellant to step out of the vehicle and perform various field sobriety tests. The
appellant performed poorly on the field sobriety tests and was arrested for driving under the
influence (DUI). Officer Cousins transported the appellant to the Kingsport Justice Center, where
the appellant agreed to take an intoximeter test. The test results indicated that the appellant had a
blood alcohol content of .16 percent.

        The appellant was subsequently indicted for DUI, fourth offense. Thereafter, the appellant
pled guilty to DUI, first offense, with the sentence to be determined by the trial court. Following a
hearing, the trial court sentenced the appellant to eleven months and twenty-nine days confinement,
to be served at seventy-five percent. The trial court also imposed a three hundred fifty dollar ($350)
fine and suspended the appellant’s driver’s license for one year. On appeal, the appellant contends
that the trial court erred in ordering the appellant to serve seventy-five percent of his sentence in
confinement.

                                            II. Analysis

         When an appellant challenges the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). Generally, the presumption of
correctness is “conditioned upon the affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). However, the trial court has more flexibility in misdemeanor sentencing than in
felony sentencing. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citing State v.
Troutman, 979 S.W.2d 271, 273 (Tenn. 1998)). In misdemeanor sentencing, the “trial court need
only consider the principles of sentencing and enhancement and mitigating factors in order to comply
with the legislative mandates of the misdemeanor sentencing statute.” Troutman, 979 S.W.2d at
274. The burden of showing that a sentence was improper is on the appellant. Tenn. Code Ann. §
40-35-401, Sentencing Commission Comments.

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302
(2003), which provides in pertinent part that the trial court shall impose a specific sentence
consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See also
State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). Unlike a defendant convicted of a felony, a
defendant convicted of a misdemeanor is not entitled to a presumptive minimum sentence. Johnson,
15 S.W.3d at 518 (citing State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997)). Rather,
in sentencing the misdemeanor defendant, the trial court shall fix a percentage of the sentence that
the defendant must serve in confinement before being eligible for release into rehabilitative
programs. Tenn. Code Ann. § 40-35-302(d). The trial court shall consider the sentencing principles
and enhancement and mitigating factors in determining the percentage to be served and “shall not
impose such percentages arbitrarily.” Tenn. Code Ann. § 40-35-302(d); see also Troutman, 979
S.W.2d at 274.



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         In the instant case, the appellant was convicted of DUI, first offense, a Class A misdemeanor.
Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 2002). A person convicted of a first offense DUI “shall
be confined in the county jail or workhouse for not less than forty-eight (48) hours nor more than
eleven (11) months and twenty-nine (29) days.” Id. However, if the offender’s blood alcohol
content was greater than .20 percent, the minimum period of incarceration increases to seven days.
Id.; see also State v. Helen Dixon Devers, No. M1999-00427-CCA-R3-CD, 2000 Tenn. Crim. App.
LEXIS 501, at *10 (Nashville, June 23, 2000). In effect, the DUI statute mandates a maximum
sentence, with the only function of the trial court being to determine what period above the minimum
period of confinement is to be suspended. State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App.
1996). Moreover, unlike general misdemeanor sentencing in which a trial court is not permitted to
require confinement in excess of seventy-five percent, a trial court is authorized to require a DUI
offender to serve one hundred percent of his sentence in confinement. State v. Allen Prentice Blye,
No. E2001-01375-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 961, at *28 (Knoxville, Nov. 1,
2002) (citing State v. Palmer, 902 S.W.2d 391, 393-94 (Tenn. 1995)).

        In sentencing the appellant, the trial court considered the arguments of counsel, the nature
and circumstances of the offense, and the contents of the presentence report, including the statement
of the appellant and the appellant’s extensive criminal history. The trial court then considered the
enhancement and mitigating factors to determine the portion of the sentence the appellant should
serve in confinement before being eligible for release. The trial court applied the following
enhancement factors:
                (2) The appellant has a previous history of criminal convictions or
                criminal behavior;
                (9) The appellant has a previous history of unwillingness to comply
                with the conditions of a sentence involving release in the community;
                (11) The appellant had no hesitation about committing a crime when
                the risk to human life was high; and
                (17) The crime was committed under circumstances under which the
                potential for bodily injury to a victim was great.
Tenn. Code Ann. § 40-35-114 (2003). Regarding mitigating factors, the trial court afforded the
appellant “some credit” based upon his “excellent work history.” Tenn. Code Ann. § 40-35-113(13)
(2003). Finding that the enhancement factors far outweighed the mitigating factors, the trial court
ordered the appellant to serve seventy-five percent of his sentence in confinement.

        On appeal, the appellant contends, and the State concedes, that the trial court erred by finding
that the facts and circumstances surrounding the instant offense warranted the application of
enhancement factor (17), i.e., the crime was committed under circumstances under which the
potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114(17). The appellant
asserts that the instant offense of DUI did not involve a named victim. We agree. Enhancement
factor (17) specifically requires that the potential for bodily injury be “to a victim” of the crime.
Tenn. Code Ann. § 40-35-114(17); see also State v. Charles Justin Osborne, No. 01C01-9806-CC-
00246, 1999 Tenn. Crim. App. LEXIS 465, at *8 (Nashville, May 12, 1999). Because there was no
victim in the instant case, we conclude that enhancement factor (17) does not apply.


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        Next, the appellant contends that in sentencing the appellant, the trial court failed to consider
as mitigating that the appellant had been making an effort to comply with his child support
obligations. However, we note that according to the presentence report, the appellant was more than
two thousand dollars ($2,000) in arrears on his child support payments at the time of sentencing.
Accordingly, we conclude that this was not a factor to be considered by the trial court in mitigating
the appellant’s sentence.

        Although not raised by either party, we conclude that the trial court improperly applied
enhancement factor (11), i.e., the appellant had no hesitation about committing a crime when the risk
to human life was high. Tenn. Code Ann. § 40-35-114(11) (2003). Enhancement factor (11) may
be applied where the appellant creates a high risk to the life of a person other than the victim. State
v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). However, proof must exist “that other
persons or motorists were either in the vicinity or placed at risk by [the appellant’s] conduct.” See
State v. Janice Carol Biskner, No. E2000-01440-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 887,
at **39-40 (Knoxville, Nov. 13, 2001). In the instant case, the trial court applied enhancement factor
(11) “based upon the facts of the case and the [appellant’s] high blood alcohol.” However, there was
no evidence that other motorists were in the vicinity or placed at risk by the appellant’s operation
of a vehicle while under the influence. Accordingly, we conclude that enhancement factor (11) does
not apply.

        Although we have determined that the trial court erroneously applied enhancement factors
(11) and (17), this does not necessarily lead to a reduction in the appellant’s sentence. State v.
Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). The application of the two remaining enhancement
factors, enhancements factors (2) and (9), are supported by the record. The presentence report
reflects that the appellant has an extensive criminal history, consisting of numerous convictions for
driving under the influence and other alcohol-related offenses. Tenn. Code Ann. § 40-35-114(2).
The presentence report also reflects that the appellant had prior probation and parole violations,
demonstrating the appellant’s unwillingness to comply with the conditions of sentences involving
release in the community. Tenn. Code Ann. § 40-35-114(9). Moreover, our supreme court has
previously noted, “[s]ociety demands protection from those who habitually drink and drive in
complete disregard for the welfare of others and for the laws of this state.” Troutman, 979 S.W.2d
at 272. These factors support the sentence imposed by the trial court.

                                           III. Conclusion

        Accordingly, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE



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