         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 22, 2004 Session

             STATE OF TENNESSEE v. JEFFERY D. HOSTETTER

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-B-1299   Steve R. Dozier, Judge



                  No. M2003-02839-CCA-R3-CD - Filed December 29, 2004



Defendant, Jeffery D. Hostetter, pled guilty to one count of furnishing intoxicating alcoholic
beverages to a person under twenty-one years of age in violation of Tennessee Code Annotated
section 39-15-404, a Class A misdemeanor, without a recommendation as to sentencing. Following
a sentencing hearing, the trial court sentenced Defendant to eleven months, twenty-nine days, with
fifty percent of the sentence to be served in confinement. On appeal, Defendant argues that the
period of confinement imposed by the trial court is excessive and inconsistent with sentencing
principles, and the trial court improperly applied enhancement factors and failed to apply appropriate
mitigating factors. After a thorough review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

E. Covington Johnston, Jr. and J. Timothy Street, Franklin, Tennessee, for the appellant, Jeffery D.
Hostetter.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Amy Eisenbeck, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

I. Background

       We note at the outset that a copy of the transcript of Defendant’s guilty plea submission
hearing is not included in the record before this Court. Generally, a transcript is necessary in order
to conduct an effective appellate review of sentencing. State v. Keen, 996 S.W.2d 842, 844 (Tenn.
Crim. App. 1999). The guilty plea submission hearing transcript allows us to ascertain the facts and
circumstances surrounding the offense. In the absence of a transcript of the guilty plea hearing, this
Court must generally conclude that the sentence imposed by the trial court was correct. Id. at 844.

        Nonetheless, Defendant, Brenda Richardson and Christopher Walker Calvin testified at the
sentencing hearing concerning the sequence of events that occurred on the day of the incident. We
therefore review this matter in light of the record before us.

         Defendant testified that he was working at Leafguard as a general manager at the time of the
offense. On December 10, 2001, he sent Mr. Calvin, one of the company’s employees, to Knoxville
around 10:00 a.m. to pick up supplies. When Mr. Calvin had not reached the supplier by late
afternoon, Defendant became concerned. He unsuccessfully called area law enforcement officials
to find out if Mr. Calvin had encountered difficulties on the trip. Joshua Morgan, another employee,
told Defendant around 6:30 or 7:00 p.m. that he wanted a drink. Defendant told Mr. Morgan that
he would buy whiskey if Mr. Morgan would go to the liquor store, but Mr. Morgan told Defendant
that he did not have any identification. Defendant then asked Ms. Richardson, another employee and
also Defendant’s girlfriend, to go to the liquor store and buy some whiskey and a couple of soft
drinks for Mr. Morgan. Defendant gave her some money for this purpose.

        When Ms. Richardson returned with the liquor, Defendant told Mr. Morgan he could have
a drink as long as he let Mr. Calvin drive him home. Defendant said that he did not know how much
Mr. Morgan drank, but admitted that he knew Mr. Morgan was intoxicated before he left work.

        Mr. Calvin returned to the office around 8:30 p.m. Defendant, Mr. Calvin and Mr. Morgan
unloaded the supplies from the truck. Defendant then called Ms. Richardson to pick him up because
he had been drinking. Defendant admitted that he gave the partially consumed bottle of whiskey to
Mr. Morgan before he and Mr. Calvin left. Defendant said that he made the two young men promise
to go straight home. Defendant said that he did not see Mr. Calvin and Mr. Morgan leave, and did
not see Christopher Odom, Mr. Calvin’s friend.

        The following morning, Mickey Martin, Mr. Morgan’s supervisor, called Defendant and told
him that Mr. Morgan and Mr. Calvin had not reported for work that morning. Mr. Martin had seen
a report of an automobile accident on the television, and he told Defendant that the wheels of the
wrecked car were similar to the wheels on Mr. Morgan’s vehicle. Mr. Martin later verified that the
wrecked vehicle was Mr. Morgan’s, and that Mr. Odom, a passenger in the car, had been killed.

        Defendant initially testified that he assumed Mr. Morgan was twenty-one when he bought
the liquor. He later stated that he “figured” Mr. Morgan was underage when he said he did not have
any identification. Defendant admitted that he knew Mr. Calvin was nineteen.

       Ms. Richardson said that she bought the whiskey for Defendant and Mr. Morgan, and then
went home for the evening. She said that Defendant called her about 8:45 p.m to pick him up. Ms.
Richardson said that when she pulled into the office parking lot around 9:00 p.m. she saw someone
standing next to the building. Mr. Morgan and Mr. Calvin then drove past her, but she could not tell


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who was driving. Mr. Morgan’s car drove around the building instead of out on the street. Ms.
Richardson said that she had not known how old Mr. Morgan was at the time of the incident.

       Mr. Calvin said that he took his friend, Christopher Odom, with him to Knoxville. The two
men returned to Nashville around 8:30 p.m. Mr. Calvin said that he knew Defendant and Mr.
Morgan had been drinking whiskey and that Mr. Morgan was “pretty drunk.” Mr. Odom hid while
Mr. Calvin helped Mr. Morgan and Defendant unload the truck. Defendant told Mr. Calvin to drive.
He and Mr. Morgan argued about who was going to drive, and Mr. Calvin let Mr. Morgan drive
because it was his car. Mr. Calvin said Defendant was inside the office when they left.

        James Douglas Sledge, an assistant district attorney, interviewed Defendant as part of the
investigation into Mr. Morgan’s wreck. Mr. Sledge said that Defendant told him that he was the one
who drove to the liquor store to buy the whiskey. Mr. Sledge said that the bottle of whiskey found
in the wreckage was approximately three-fourths full, and Mr. Morgan’s blood alcohol level was .15
percent.

        Defendant admitted that he told the preparer of the presentencing report that he had quit
drinking after the incident. Defendant explained at the sentencing hearing that he meant that he did
not drink at the same level as he did before the incident, and that he was trying to quit drinking.
Defendant said that he had two glasses of wine three or four days before the sentencing hearing.

        Christopher Odom’s parents, Terry and Billie Odom, testified about the impact of their son’s
death on their family. In addition, the State presented numerous letters from family members and
friends of Mr. Odum. Will Thorpe, Larry Cranfield, and Dale Allen Rivers testified in Defendant’s
behalf as to Defendant’s character and standing in the community.

        The trial court considered Defendant’s prior conviction for DUI as an enhancement factor
in determining the manner of service of Defendant’s sentence. The trial court observed that
Defendant had just completed probation for this alcohol-related offense when he committed the
current offense. In addition, the trial court found that Defendant had violated a private trust because
he was Mr. Morgan’s employer, and the only adult of drinking age present that evening. The trial
court stated that giving the underage men a partially filled bottle of whiskey before they got into Mr.
Morgan’s car “was basically [like] giving them a loaded gun.” The trial court acknowledged that
Defendant had been a productive member of society but declined to consider this factor in mitigation
of Defendant’s sentence based on Defendant’s demonstrated lack of responsibility during the
incident.

        The trial court found that Defendant’s lack of remorse over the incident evidenced by his
demeanor during the hearing indicated that some form of personal deterrence was warranted. The
trial court specifically found Defendant not credible in his testimony concerning whether or not he
knew Mr. Morgan was underage and in his testimony about his drinking habits since the incident.




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II. Sentencing Issues

        Defendant was convicted of a Class A misdemeanor which carries a sentence not greater than
eleven months, twenty-nine days. Tenn. Code Ann. §§ 39-15-404(b); 40-35-111(e)(1). Defendant
does not appeal the length of his sentence but challenges the percentage of the sentence he must
serve in confinement. Defendant argues that the trial court failed to properly consider the purposes
and goals of the sentencing act when determining the percentage of his confinement. Defendant
argues that he should have been granted full probation, or, in the alternative, a minimal period of
confinement.

        When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Id. § 40-35-401(d). This presumption 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).

        In conducting a de novo review of a sentence, this Court must consider (1) the evidence, if
any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and arguments of counsel relative to sentencing alternatives; (4) the nature and
characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by
the defendant in his own behalf; and (7) the defendant’s potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-102, -103, and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.
App. 1987). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments; Ashby, 823 S.W.2d at 169.

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides, in part, that the trial court shall impose a specific sentence that is consistent with
the purposes and principles of the 1989 Sentencing Reform Act. See Tenn. Code Ann. § 40-35-
302(b). Although the Sentencing Reform Act typically treats misdemeanants and felons the same,
misdemeanants are not given the presumption of a minimum sentence. See State v. Seaton, 914
S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing hearing is not required in
misdemeanor sentencing, but the trial court must “allow the parties a reasonable opportunity to be
heard on the question of the length of any sentence and the manner in which the sentence is to be
served.” Tenn. Code Ann. § 40-35-302(a). A misdemeanor sentence, unlike a felony sentence, has
no sentence range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The trial court is allowed greater flexibility in setting misdemeanor sentences than felony
sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). The trial court, however,
must impose a specific sentence for a misdemeanor conviction consistent with the purposes and
principles of the 1989 Criminal Sentencing Reform Act. Tenn. Code Ann. § 40-35-302 (d); State
v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). The trial court should consider enhancement and
mitigating factors in making its sentencing determinations; however, unlike the felony sentencing


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statute, which requires the trial court to place its findings on the record, the misdemeanor sentencing
statute “merely requires the trial judge to consider enhancement and mitigating factors when
calculating the percentage of a misdemeanor sentence to be served in confinement.” State v.
Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The misdemeanor offender must be sentenced to an
authorized determinate sentence with a percentage of not greater than seventy-five percent to be
served by the defendant before he or she is eligible for rehabilitative programs. Tenn. Code Ann.
§§ 40-35-302(b) and -302(d). When a defendant challenges a misdemeanor sentence, this Court
conducts a de novo review with a presumption that the trial court’s determinations are correct. Tenn.
Code Ann. § 40-35-401(d).

       Although he cites no specific examples, Defendant contends that his sentence is unjustly
disparate to sentences meted out to other offenders who provide alcohol to a minor but whose
victims do not subsequently commit vehicular homicide. See Tenn. Code Ann. § 40-35-102(2).
Defendant bases his argument on the trial court’s observation that if the accident had not happened,
“we would’ve never heard of Defendant; and his case would’ve been settled in General Sessions
[Court] and Mr. Morgan, maybe, got picked up on a DUI, and they said, ‘Where’d you get the
alcohol?’ and he says, ‘Defendant,’ and they cite him for that, and he gets probation or something.”
Defendant contends essentially that it was not his fault that Mr. Morgan wrecked his vehicle.
Defendant argues that it was both foreseeable and probable that Mr. Morgan would have stopped
anyway to purchase liquor on his way home.

        We agree with Defendant’s general premise that one of the acknowledged goals of the 1989
Sentencing Act is to encourage “the elimination of disparate sentences when appropriate.” State v.
Carpenter, 69 S.W.3d 568, 576 (Tenn. Crim. App. 2001). “When the provisions of [Tennessee Code
Annotated sections 40-35-102 and 40-35-103] are read together, they clearly permit trial courts to
exercise their discretion in determining the sentencing alternatives, or the length of the term of
confinement, allowing differences in sentences justified by the nature of the crime, the characteristics
and history of the criminal, and the circumstances surrounding the particular offense involved. Id.
(citing State v. Russell, 773 S.W.2d 913, 915 (Tenn. 1989). Despite Defendant’s speculation as to
what Mr. Morgan might or might not have done that night, each sentence must be considered on its
own merits and unique set of facts. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App.
1987). “Although the purposes of sentencing are based on general principles, the Act can only be
applied in an individual case to a particular person based upon the facts of that case and the
circumstances of the defendant.” State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). Our review thus
focuses not on whether Defendant’s sentence is “fair,” but whether the trial court followed the
purposes and principles of the sentencing act in arriving at its sentencing determination for this
particular offense. Palmer, 902 S.W.2d at 393-94.

       A trial court may sentence a defendant to a period of confinement based on any one of the
following considerations:

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;


                                                  -5-
       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

        The trial court obviously based its conclusion that a period of confinement was warranted
on the need to avoid depreciating the seriousness of the crime. Probation may be denied based solely
upon the circumstances surrounding the offense. State v. Hartley, 818 S.W.2d 370, 374 (Tenn.
Crim. App. 1991). To deny probation solely on these grounds, however, the offense “must be
especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or an
exaggerated degree.” Id. Defendant argues that his offense does not rise to this level, and we agree.
However, circumstances which do not rise to a level which justifies denial of alternative sentencing
may nevertheless justify a denial of full probation. State v. Bingham, 910 S.W.2d 448, 455-56
(Tenn. Crim. App. 1995). In addition, a defendant’s lack of credibility or his or her failure to
acknowledge culpability may reflect on the potential for rehabilitation and support a finding that a
period of confinement is necessary to avoid depreciating the seriousness of an offense. State v.
Gutierrez, 5 S.W.3d 641, 647 (Tenn. 1999); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Cirm. App.
1997).

       The trial court observed,

       I do not think, even sitting here today, that Mr. Hostetter–you know, I’ve heard these
       witnesses talk about he’s cried and he’s broken down to them, at home in
       Indianapolis. But the only time--I’ve sat here and observed him now for three
       hours–is–the only time he’s gotten choked up is when his defense attorney asked him
       about going to jail. . . .

       So, you know, I do think I can consider not just this is furnishing some cups of Evan
       Williams to Mr. Morgan, but what eventually it led to, and do think that [Defendant]
       has, even here today, some issues with realizing the significance of that event, that
       occurred over this one and one-and-a-half [sic] period of time, that they’re worried
       about Mr. Calvin and decide to start drinking.

       I don’t really understand [Defendant’s] change in his position from–I mean, I thought
       I made myself pretty clear, when I was asking about he wasn’t trying to tell the Court
       that he didn’t think Joshua Morgan was less than twenty-one.

       He made it clear that he was trying to give that impression to the Court, and then
       changes his opinion later–I don’t know if it was because of what I said or not–but



                                                -6-
       changes his opinion and says, well, yeah, he did think that maybe he was under
       twenty-one.

        Defendant argues that he did not lie to the trial court about whether or not he knew Mr.
Morgan was under twenty-one because he did not know Mr. Morgan’s true age. Defendant,
however, misses the thrust of the trial court’s concern over Defendant’s credibility. During
Defendant’s direct examination, the trial court asked, “You’re not [going to] try to say that you knew
Mr. Morgan was twenty-one, are you?” Defendant replied, “Well, I assumed, by the conversation,
that he was.” Later, Defendant admitted that he did not think Mr. Morgan was twenty-one after he
failed to produce any identification. The following exchange took place:

       THE COURT:              That’s not what you told me earlier

       DEFENDANT:              I understand. I guess, what I’m saying is I’m – to answer
                               what you’re saying, I did not know how old he was; that I did
                               not know. But I figured he musta [sic] been under twenty-
                               one. So, in my mind, yes, I guess I did know that; but I didn’t
                               know a specific age.

       THE COURT:              Why are you changing your testimony?

       DEFENDANT:              That’s what I thought my attorney was telling – or asking me.

        Based upon our review of the record and the nature and circumstances of the offense, we
conclude that the trial court acted within its discretionary authority in requiring Defendant to serve
a part of his sentence in confinement.

       In determining the percentage of his sentence to be served in confinement, the trial court
found that Defendant had violated a position of trust not only because Defendant was Mr. Morgan’s
employer but also because Defendant was the only person of drinking age present during the
evening. See Tenn. Code Ann. § 40-35-114(16). Defendant argues that although he was Mr.
Morgan’s employer, he barely knew him and his relationship with Mr. Morgan was not such that it
promoted Mr. Morgan’s confidence, credibility or faith. See State v. Kissenger, 922 S.W.2d 482
(Tenn. 1996).

       Defendant was convicted of furnishing an intoxicating beverage to an individual under
twenty-one years old. Tenn. Code Ann. § 39-15-404(2). The fact that Defendant was over twenty-
one and Mr. Morgan underage, therefore, does not, standing alone, trigger application of
enhancement factor (16). An enhancement factor by itself may not be an essential element of the
charged offense. Tenn. Code Ann. § 40-35-114. See also State v. Housewright, 982 S.W.2d 354,
358 (Tenn. Crim. App. 1997) (citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.
1995), overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 22 (Tenn. 2000)(A trial court may
not consider factors which constitute elements of the offense within its sentencing determinations.))


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       A supervisor/employee relationship, however, may establish a relationship of private trust.
See State v. Harris, 866 S.W.2d 583, 588 (Tenn. Crim. App. 1992). In Kissinger, our Supreme
Court explained that,

       [t]he determination of the existence of a position of trust does not depend on the
       length or formality of the relationship, but upon the nature of the relationship. Thus,
       the court should look to see whether the offender formally or informally stood in a
       relationship to the victim that promoted confidence, reliability, or faith.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).

         In the case sub judice, Mr. Morgan initiated the idea of drinking whiskey. It was Defendant,
however, who then offered to buy the liquor for Mr. Morgan. It can be reasonably inferred that the
reason Defendant supplied the alcoholic beverage for Mr. Morgan was for them to drink while they
were delayed at work waiting for Mr. Calvin to return from Knoxville. Defendant said that he
poured himself a drink. Mr. Morgan asked Defendant if he minded if Mr. Morgan made a drink, and
Defendant replied, “yes, you can.” Based on the circumstances presented, we cannot conclude that
the trial court erred in considering enhancement factor (16) in its sentencing determinations.

        The trial court also considered Defendant’s prior conviction of DUI in determining the
percentage of his sentence to be served in confinement. See Tenn. Code Ann. § 40-35-114(2).
Although Defendant only has one prior criminal conviction, the trial court placed great weight on
this factor because both offenses were alcohol-related, and Defendant had just finished his
probationary period for the first offense when he committed the second. A prior criminal conviction
is an appropriate factor to be considered in a trial court’s sentencing determinations. See Troutman,
979 S.W.2d at 274.

       Defendant also contends that the trial court implicitly, and erroneously, considered
enhancement factor (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(17). The record, however,
does not support Defendant’s contention that this enhancement factor played a role in the trial court’s
sentencing determinations.

        Although the trial court found no mitigating factors, Defendant contends that several factors
are present. First, he argues that his conduct did not cause or threaten to cause serious bodily injury.
Id. § 40-35-113(1). Defendant contends that providing alcohol to a person under twenty-one does
not “create the threat of imminent bodily injury like firing a loaded weapon or committing assault
with a blunt object.” The trial court, in declining to consider this factor, observed not only that
Defendant permitted Mr. Morgan to drink at work, but also the fact that after Mr. Morgan was
intoxicated, Defendant gave Mr. Morgan and Mr. Calvin a partially full bottle of liquor as they were
leaving the premises in Mr. Morgan’s car. As the trial court observed, “So, [Defendant] just calls
his girlfriend and goes about his way, thinking that a nineteen-year-old with a gallon of Evan
Williams, with another nineteen-year-old, are going to honor their word to him and either not partake


                                                  -8-
of any of it while they’re driving and not allow Mr. Morgan to drive.” Although Defendant
strenuously argues that he is not responsible for Mr. Odom’s death, the circumstances underlying
a particular offense may be considered in determining which enhancement or mitigating factors are
present. We cannot conclude that the evidence preponderates against the trial court’s finding that
this mitigating factor is not applicable.

       Defendant argues that substantial grounds exist to justify or excuse his conduct because
Defendant took steps to prevent Mr. Morgan from driving. Tenn. Code Ann. § 40-35-113(3).
Regardless of the sufficiency of Defendant’s actions in this regard, his argument addresses his
conduct after the commission of the offense. Under our statutory scheme, it is an offense to purchase
alcohol for a person under twenty-one “for any purpose.” The trial court did not err in declining to
consider this mitigating factor.

        Defendant argues that his cooperation with the investigating officers after the car accident
should be considered in mitigation of his sentence. Id. § 40-35-113(9). There is no evidence in the
record, however, that Defendant assisted the police in their investigation other than confirming the
sequence of events leading up to Mr. Morgan’s intoxication prior to the time of the accident.

        Accordingly, we conclude that the trial court acted within his discretionary authority in
requiring Defendant to serve fifty percent of his sentence in confinement.

        We note that the State has argued on appeal that the United States Supreme Court’s recent
decision in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) has no impact on a trial
court’s sentencing determinations involving misdemeanor convictions, and we agree.

        The Blakely decision reemphasized a criminal defendant’s Sixth Amendment right to have
a jury determine the presence of all of the essential elements of the charged offense beyond a
reasonable doubt, even if these factors are labeled by the State as sentencing enhancement factors.”
Id., 124 S. Ct. 2538-39. The Blakely court clarified that the “statutory maximum” to which a trial
court may sentence a defendant is not the maximum sentence after application of appropriate
enhancement factors, other than the fact of a prior conviction, but the “maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Id. at 2537 (emphasis in original). Under Blakely, then, unless the defendant has a prior
conviction, the “statutory maximum” sentence which may be imposed is the presumptive sentence
applicable to his or her offense. Id.

        Unlike a defendant convicted of a felony, however, the legislature has not extended a
statutory presumptive sentence to misdemeanants. Tenn. Code Ann. §§ 40-35-111, -210; State v.
Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995). The presumptive sentence for a Class B,
C, D, or E felony conviction is the minimum sentence in the range if there are no enhancement or
mitigating factors present. Tenn. Code Ann. § 40-35-210(c). The presumptive sentence for a Class
A felony is the mid-point of the range. Id. The sentencing scheme for misdemeanants, however,
establishes only a maximum sentence which may be imposed for a particular class of misdemeanor.


                                                -9-
Id. 40-35-111(e). Thus, a misdemeanor sentence, unlike a felony sentence, has no sentence range.
Baker, 966 S.W.2d at 434.

        The Sixth Amendment concerns expressed in Blakely are not implicated by our misdemeanor
sentencing scheme. A trial court is merely required to consider statutory enhancement and
mitigating factors in calculating the percentage of the misdemeanant’s sentence to be served in
confinement, not the length of his or her sentence. Tenn. Code Ann. § 40-35-302(d); Troutman, 979
S.W.2d at 274. As our supreme court has recently observed, several courts have rejected the
contention that Blakely applies to a trial court’s determination of the manner of service of a sentence.
State v. Robinson, ___ S.W.3d ___, No. W2001-01299SCR11-DD, slip op. 26 n. 14 (Tenn. Sept.
28, 2004) (Considering Blakely’s application to a trial court’s order of consecutive sentencing.)

                                          CONCLUSION

       Based upon our review of the record, the judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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