           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                        JANUARY SESSION, 1997
                                                      October 24, 1997

                                                   Cecil W. Crowson
STATE OF TENNESSEE,         )    C.C.A. NO. 01C01-9512-CC-00433
                                                 Appellate Court Clerk
                            )
      Appellee,             )
                            )
                            )    COFFEE COUNTY
VS.                         )
                            )    HON. GERALD L. EWELL, SR.
CARL E. CAMPEN,             )    JUDGE
                            )
      Appellant.            )    (Direct Appeal-Sentencing)




FOR THE APPELLANT:               FOR THE APPELLEE:

CHRISTOPHER VAN RIPER            JOHN KNOX WALKUP
Stuart & Van Riper               Attorney General and Reporter
300 Market Street
Clinton, TN 37716                KAREN M. YACUZZO
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243

                                 MICKEY LAYNE
                                 District Attorney General

                                 STEPHEN E. WEITZMAN
                                 Assistant District Attorney
                                 P. O. Box 147
                                 Manchester, TN 37355


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


A Coffee C ounty C ircuit Cou rt jury found Appella nt Carl E. Campen guilty of

driving under the influence of an intoxicant (DUI), fourth offense, and driving on

a revoked license. F or the DU I conviction , Appella nt received a sentence of

eleven mon ths twe nty-nin e days in the county jail and a fine of seven thousand

dollars. For the driving on a revoked license conviction, he received a sentence

of one hund red eighty days in the county jail and a fine of five hundred dollars.

The trial court ordered the sentence s served con secutively. In this dir ect ap peal,

Appellant presents the follow ing issue for review: wheth er his s enten ce is

excessive.



      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                          I. FACTUAL BACKGROUND

      On Marc h 7, 19 95, the Coffe e Cou nty Gra nd Ju ry indicted Appellant for

DUI, fourth offense, in violation of Tennessee Code Annotated Section 55-10-401

and for driving on a revoked license in violation of Tennessee Code Annotated

Section 55-50-504.



      Appellant originally expressed an interest in pleading guilty to the charges

but, at the plea acceptance hearing on March 21, 1995, inexplicably pled not

guilty. The trial court accepted the not gu ilty plea but found Appellant in contempt

of court for represe nting to the court that h e would plea d guilty.




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       In July of 1995, Appellant was tried before a jury in the Coffee Coun ty

Circu it Court. At the conclusion of the trial, the jury found Appellant guilty of the

offenses as set out in the indictm ent.           The trial court im posed co nsecutive

sentences of eleven months and twenty-nine days for the DUI offense and one

hundred eighty days for the driving on a revo ked license o ffense. The trial cou rt

ordered incarceration for seventy-five percent of the sentence.



                                   II. SENTENCING

       Appe llant alle ges th at his sentence is excessive. Specifically, he argues

that the trial c ourt er red in d eterm ining th e leng th of his sente nces , in failing to

impose some form of alternative sentence, and in ordering consecutive

sentencing.



       When an appeal challenges the length, range, or manner of service o f a

sentence, this Court conducts a de novo review with a presumption that the

determ ination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d)

(1990).   However, this presumption of correctness is “conditioned upon the

affirmative showing that the trial court in the record considered the sentencing

principles and all relevant facts and circu mstance s.” State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1 991). In the eve nt that th e reco rd fails to demonstrate such

consideration, review of the sentenc e is purely de novo. Id. If appellate review

reflects that the trial cour t properly c onside red all releva nt factors a nd its findings

of fact are adequately supported by the record, this Court must affirm the

senten ce. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In

conducting a review, th is Court m ust cons ider the ev idence , the presentence

report, the sentencing principles, the arguments of counsel, the nature and

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character of the offense, mitigating and enhancement factors, any statements

made by the de fendan t, and the potential fo r rehabilitation or treatm ent. State v.

Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 19 93). The defendant bears the

burden of showing the improp riety of the se ntence impos ed. State v. Grego ry,

862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).



      The misdemeanant is not entitled to the presumption of a minimum

sentence. State v. Creasy, 885 S.W.2d 829 (Ten n. Crim. App . 1994). Further,

misdemeanor sentences do not contain ranges of punishments, and a

misdemeanor defendant may be sentenced to the maximum term provided for

the offense as long as the sentence imposed is consistent with the purposes of

the sen tencing a ct. State v. Palmer, 902 S.W .2d 391 , 393 (T enn. 19 95).



      In determ ining the p ercenta ge of the sentence that must be served, the

court is required to consider enhancement and mitigating factors as well as the

legislative purpos es and principles related to s entenc ing. Palmer, 902 S.W .2d

at 393. Here Appellant does not challe nge th e perc entag e of se rvice of h is

sentences.    Rather, he argues only that the imposition of the maximum

sentences are excessive.



      The trial court, in sentencing Appellant, specifically set out the facts,

circumstances and applicable portions of the Sentencing Reform Act of 198 9 in

the record. A sep arate senten cing hearing w as held for which a pre-sentence

report was ord ered. Appellant’s criminal record consists of three previous DUI




                                         -4-
convictions.    In determining the s enten ce, the court c onsid ered A ppella nt’s

previous criminal history and the fact that this conviction involved a crime in which

the risk to h uman life was high . No mitig ating facto rs were fo und by th e court.



       Appellant contests the first enhancement factor found by the court under

Tenn. Code Ann. Section 40-35-114(10), that the defendant had no hesitation in

committing a crime when the risk to human life was high.                Specifically, the

defendant argues that since he was not “driving” the vehicle, there was no risk

posed to others’ health or safety. The affidavit of complaint in the arrest warrant

described the defendant as “the subject of a complaint at ParMa rt on Hw y. 55.”



       A transcript of the evidence presented at trial is not contained in the re cord

and there is no proof showing whether the trial cour t found the defend ant guilty

of “driving” of be ing in “phys ical contro l” of the vehic le at the tim e of his arre st.

See Tenn. C ode Ann . Sec. 55-10-4 01. W hen the reco rd does n ot contain the

proof presented on an issue, this Court is precluded from considering it and we

must presume the trial court’s ruling is correct. State v. Benne tt, 798 S.W.2d 783

(Tenn. Crim. A pp. 199 0), cert. denied, 500 U.S. 915, 111 S.C t. 2009, 114 L.Ed.2d

98 (1991); State v. Matthews, 805 S.W .2d 776, 785 (Tenn. Crim . App. 1990 ).

Since Appellant relies on alleged facts not included in the record, he has waived

this issue.



       The trial court also applied as an enhancement factor Tennessee Code

Anno tated Se ction 40-3 5-114(1 ), that the de fendan t has a pre vious histo ry of




                                            -5-
criminal convictions or criminal behavior. The presentence report indicates the

defendant has th ree prio r convic tions fo r driving unde r the influence. Under

Tennessee Code A nnotated S ection 55-10-404, the punishment for driving under

the influence is graded according to three categories; first conviction, second

conviction and “third or subsequent conviction.” Although Appellant was charged

with DU I, 4th offens e, only two previous conviction s are ne cessar y eleme nts to

qualify for the maximum possible fine and punishment under the statute. Tenn.

Code Ann. S ec. 55-1 0-403. Two of Ap pellant’s previous co nvictions were used

to establish punishment under Tennessee Code Annotated Section 55-10-

403(a)(1), and the other was appropriately considered in imposing the maximum

sentence.



      Appellant further argues that because these convictions span a period of

ten years, they do not indicate a period of consistent crim inal behavior. Ho wever,

the record shows that Appellant has a history o f repea tedly committing the same

crime. Appellant has not cited, and we are unawa re of, any au thority to support

Appe llant’s position that, for the purposes of Tennessee Code Annotated Section

40-35-114 (1), all previous offenses must be within a specified period of time.

Therefore, the application of Appellant’s prior criminal history in determining the

length of the sentence was appropriate.



      A. Alternative Sentencing




      The trial court did not grant any for m of a lternativ e sen tencin g, altho ugh it

recognized that alternatives to incarceration are encouraged under Tennessee




                                          -6-
Code Annotated Section 40-35-103(1)(C)(6). Confinement of Appellant was

based, in part, on the fact that less restrictive measures had been used

unsu cces sfully in the past. Tenn. Code Ann. § 40-35-103(1)(C). For each of

Appe llant’s prior DUI convictions, probation had been im posed with only 48 hours

to serve and a fine on each. Yet Appellant continued to drink and operate a

vehicle while intoxicated even after his license had been revoked. Application of

this enhancement factor was appropriate.



       Additionally, the trial court’s refusal to suspend the sentence was based

upon Appella nt’s lack of a mena bility to rehabilitation . Tenn. C ode An n. § 40-35-

103(1)(C)(5). The court noted at the s enten cing h earing that du ring the trial,

Appellant “in effect, lied to the jury concern ing his prior record . . .” Appellant also

exhibited “an arrogant uncooperative attitude” with the presentence officer. He

showed no remorse for his crime and has, in the past, made similar promises not

to drive under the influence which he has be en una ble to keep. Appellant has not

taken respon sibility for his criminal conduct and the trial court properly denied

alternative sentencing.1



       Pointing to the number of DUI cases on its docket, the trial court also cited

the need fo r deterren ce in den ying any fo rm of alter native sen tencing. In view of

the discussion above, whether such judicial notice of the ubiq uity of a particular

crime is sufficie nt evide nce to warra nt a de nial of alternative sentencing is an

issue we need not address.



1
       It should be noted that pursuant to Tennes see Code An notated Section 55-10-403(b)(1),
       App ellant is req uired to se rve th e m inim um sent enc e for four th off ens e DU I in
       incarceration before being eligible for probation. Thus, Appellant would have to serve 120
       days in jail regardless of his suitability for probation.

                                                -7-
               It is well-settled that whether sentences should be served

conc urren tly or consecutively is a matter addressed to the sound discretion of the

trial court.   William s v. State, 520 S.W .2d 371 (Te nn. Crim. Ap p. 1974).

Tennessee Code Annotated Section 40-35-115, provides for circumstances

under which consecutive s entences m ay be impo sed. In pertinent pa rt it reads:



               (a) If a defendant is convicted of more than one (1)
               criminal offense, the court shall order sentences to run
               cons ecutive ly or concurre ntly as provided by the
               criteria in this section.
               (b)     The court may order sentences to run
               consecutively if the court finds by a preponderance of
               the evide nce tha t:

                                          ...

               (2) The defendant is an offender whose record of
               criminal a ctivity is extensive . . . .
                                            ...


Tennessee Code Annotated Section 40-35-115.

       The trial court found that Appellant “is an offender whose record of criminal

activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). When a defendant

falls within the c lassification of an “offen der who se reco rd of crimin al activity is

extensive,” the only remaining considerations are whether (1) the terms

reasonab ly relate to the severity of the offen ses and (2) w hether the term s are

necessa ry in order to protect the public from further misconduct by the de fendan t.

State v. Wilkerson, 905 S.W .2d 933, 938 . (Tenn. 199 5).




       Appellant has ove r a period of nine (9) ye ars repe atedly violated the

prohibition concerning drunk driving. The instant case is his fourth DUI conviction

and it is coupled with a driving on a revoked license conviction. Under these


                                           -8-
circumstances we agree that Appellant has an extensive record of criminal

activity.   In addition, Appellant may be properly classified as a “dangerous

offender” for whom consecutive sentencing is appropriate. See State v. Anthony

Raymond Bell, No. 03C01-9503-CR-00070 (Tenn. Crim. App. at Knoxville, March

11, 1996) perm. to appeal denied (Tenn. 1996); State v. Lonas Britt Dillard, No.

03C01-9311-CR-00386 (Tenn. Crim. App. at Knoxville, July 13, 1994) (classifying

DUI offend er as a dang erous offend er). Fu rther, th e con secu tive sentences

reaso nably relate to the s everity of the offense. T he cas e law of this State

resounds with references to the seriousness of drunk driving. See e.g., State v.

Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985). Appellant is an individual who has

repea tedly violated this criminal statute. Finally, we believe the trial judge was

correct in his finding th at a length y term wa s nece ssary to protect the public from

further misconduct by Appellant. Prior lenient punishments imposed on Appe llant

have failed to deter his continued violation of the DU I law. In addition Appellant

has shown no remorse, nor has he accepted any responsibility for his actions.

W e are left to conclude that a lengthy period of incarc eration is the only w ay to

protect the public from further instances of drunken driving on part of the

Appe llant.



       The judgment of the trial court is affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:




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___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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