         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 27, 2001

                STATE OF TENNESSEE v. MARVIN W. HILL, JR.

                 Direct Appeal from the Circuit Court for Blount County
         Nos. C-9577, C-9582, C-12035 and C-12231    D. Kelly Thomas, Jr., Judge



                                 No. E2000-02789-CCA-R3-CD
                                      September 21, 2001

In July 1999, the Defendant pled guilty to evading arrest and possession of marijuana, both Class A
misdemeanors, and received concurrent sentences of eleven months and twenty-nine days
supervised probation. In December 1999, the Defendant was indicted for assault and aggravated
criminal trespass, both of which are also Class A misdemeanors. In January 2000, a violation of
probation warrant was issued against the Defendant, alleging that he had violated his probation in
the first two cases. In March 2000, the Defendant pled guilty to the assault and aggravated criminal
trespass charges, and a combined sentencing hearing and probation violation hearing was held by
the trial court. The trial court revoked the Defendant’s probation in the first two cases and imposed
concurrent sentences of eleven months and twenty-nine days incarceration. The court also imposed
sentences of eleven months and twenty-nine days incarceration in the second two cases, to run
concurrently with each other but consecutively to the sentences imposed in the first two cases. On
appeal, the Defendant argues that the trial court erred in imposing sentences of incarceration in each
case. Because our review of the record reveals that the sentences were proper, we affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Steve McEwen (on appeal), Mountain City, Tennessee; and Shawn Graham, Maryville, Tennessee;
for the Appellant, Marvin W. Hill, Jr.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Bill Reed, Assistant District Attorney General, for
the Appellee, State of Tennessee.
                                             OPINION

        The Defendant, Marvin W. Hill, Jr., was indicted in August 1996 by the Blount County
Grand Jury for possession of marijuana and evading arrest, Class A misdemeanor offenses. In July
1999, the Defendant pled guilty to both offenses and received concurrent sentences of eleven months
and twenty-nine days with immediate supervised probation. In December 1999, the Blount County
Grand Jury indicted the Defendant for assault and aggravated criminal trespass, also Class A
misdemeanor offenses. While these charges were pending disposition, a warrant was issued alleging
that the Defendant was in violation of his probation on the first two cases. In March 2000, the
Defendant entered guilty pleas to the assault and aggravated criminal trespass charges, with the trial
court to determine the appropriate sentence at a sentencing hearing. The disposition of the pending
warrant for violation of probation in the first two cases was also set for the same date.

        At the sentencing hearing, the court heard the testimony of the victim of the assault and
aggravated criminal trespass charges, as well as the testimony of the Defendant. The court ordered
that the Defendant’s probation in the first two cases be revoked and that he be required to serve the
original sentences of eleven months and twenty-nine days. The trial court sentenced the Defendant
to eleven months, twenty-nine days incarceration for the assault charge and eleven months, twenty-
nine days for the aggravated criminal trespass charge. The assault and aggravated criminal trespass
sentences were ordered to be served concurrently with each other, but consecutively to the first two
sentences. The trial court imposed a seventy-five percent “minimum service prior to release” for the
assault and aggravated criminal trespass charges.

                                            ANALYSIS

        On appeal, the Defendant concedes that the trial court did not abuse its discretion in revoking
the Defendant’s probation, but argues that the trial court improperly ordered the Defendant to serve
his sentences in the county jail rather than on probation. More specifically, the Defendant argues
that there is nothing in the record to indicate that the trial court considered the principles of
sentencing or any enhancement or mitigating factors before sentencing the Defendant to the county
jail.

        Our analysis begins with well-settled principles that govern our review of a sentence
determination imposed under the Criminal Sentencing Reform Act of 1989. In making its sentencing
determination, the trial court, at the conclusion of the sentencing hearing, determines the range of
sentence and then determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the
presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4)
the nature and characteristics of the criminal conduct involved, (5) evidence and information offered
by the parties on the enhancement and mitigating factors, (6) any statements the defendant wishes
to make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v. Williams, 920 S.W.2d 247, 258
(Tenn. Crim. App. 1995).


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        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the trial court
is required to allow the parties a reasonable opportunity to be heard on the question of the length of
the sentence and the manner in which it is to be served. Tenn. Code Ann. § 40-35-302(a). In this
case, the trial court did so. Further, the sentence imposed must be specific and consistent with the
purposes and principles of the Criminal Sentencing Reform Act of 1989. Id. § 40-35-302(b). A
percentage of not greater than seventy-five percent of the sentence should be fixed for service, after
which the Defendant becomes eligible for “work release, furlough, trusty status and related
rehabilitative programs.” Id. § 40-35-302(d).

       The misdemeanant, unlike the felon, is not entitled to the presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, in determining
the percentage of the sentence to be served in actual confinement, the court must consider
enhancement and mitigating factors as well as the purposes and principles of the Criminal
Sentencing Reform Act of 1989, and the court should not impose such percentages arbitrarily. Tenn.
Code Ann. § 40-35-302(d).

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Id. § 40-35-401(d). The Tennessee Supreme
Court has held that in misdemeanor sentencing a trial court is not required to place specific findings
on the record. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). A 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. Id. at 274. Because this case
involves misdemeanor sentencing rather than felony sentencing, a lack of findings by the trial court
is no basis for holding the trial court in error. State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim.
App. 1999). Additionally, although the trial court did not make findings relative to specific
enhancement and mitigating factors, the presumption of correctness nevertheless applies in this case.
Tenn. Code Ann. § 40-35-401(d).

        After a careful review, we conclude that the sentences imposed by the trial court are
supported by the appropriate principles of sentencing, enhancement factors, and the mitigating
factors proposed by the Defendant. The Defendant has an extensive criminal history involving
numerous convictions. See id. § 40-35-114(1). The convictions include both felonies and
misdemeanors. The record also indicates that the Defendant has a previous history of unwillingness
to comply with the conditions of a sentence involving release in the community. See id. § 40-35-
114(8). Thus, the record supports the application of two enhancement factors.

        As for mitigating factors, the Defendant alleges that he was suffering a “flashback” during
the assault and the aggravated criminal trespass, and therefore, the offenses were committed under
such unusual circumstances that it is unlikely that a substantial intent to violate the law motivated
his conduct. See id. § 40-35-113(11). However, this mitigating factor is far outweighed by the two
previously stated enhancement factors. Likewise, we are not persuaded that the jail time already



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served by the Defendant on these charges, or to be served on unrelated federal charges, is an
appropriate mitigating factor.

        The Defendant has the burden of establishing suitability for total probation. State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). A defendant seeking full probation bears the burden
on appeal of showing the sentence imposed is improper and that full probation will be in the best
interest of the defendant and the public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.
1997). Further, the burden is upon the defendant to demonstrate the impropriety of his sentence.
State v. Grigsby, 957 S.W.2d 541, 544 (Tenn. Crim. App. 1997).

        Sentences of confinement are justified in this case for several reasons. First, confinement
is necessary to protect society from this Defendant who has a long history of criminal conduct.
Tenn. Code Ann. § 40-35-103(1)(A). Next, the record indicates that measures less restrictive than
confinement have frequently and recently been applied unsuccessfully to the Defendant. See id. §
40-35-103(1)(C). With regard to the Defendant’s suitability for full probation, it is appropriate to
consider the circumstances of the offense, the Defendant’s potential or lack of potential for
rehabilitation, whether full probation will unduly depreciate the seriousness of the offense, and
whether a sentence other than full probation would provide an effective deterrent to others likely to
commit similar crimes. See State v. Parker, 932 S.W.2d 945, 958 (Tenn. 1996). Denial of probation
may be based solely upon the circumstances of the offense when they are of such a nature as to
outweigh all other factors favoring probation. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).

         In this case, the victim was taking a nap on her couch in her apartment when she was attacked
and terrorized by the Defendant. The 911 tape exhibited at the sentencing hearing reveals the extent
to which the victim was terrorized. Her testimony at the sentencing hearing indicates that she was
still suffering from the injuries inflicted upon her by the Defendant. The Defendant’s extensive prior
criminal history indicates a lack of potential for rehabilitation. The Defendant has failed to meet his
burden in establishing his suitability for full probation.

       Accordingly, we AFFIRM the judgments of the trial court.


                                               _________________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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