         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    March 18, 2003 Session

        STATE OF TENNESSEE v. DARLENE RENEE BLACKHURST

                  Direct Appeal from the Criminal Court of Sullivan County
                            No. S42,421    R. Jerry Beck, Judge



                                  No. E2002-01249-CCA-R3-PC
                                        August 12, 2003

On January 10, 2000, Defendant, Darlene Renee Blackhurst, pled guilty to a second offense of
driving under the influence of an intoxicant ("DUI"), leaving the scene of an accident involving
injury, and three counts of reckless aggravated assault. Following a sentencing hearing, the trial
court imposed an effective sentence of three years, eleven months and twenty-nine days and ordered
the sentence to be served on intensive supervised probation following a mandatory forty-five days
in confinement for the DUI second offense. The State appealed the trial court's grant of full
probation. After a de novo review, this Court reversed the trial court’s judgment regarding the
manner of service of Defendant’s sentence and remanded the matter to the trial court for the limited
purpose of determining whether Defendant should be incarcerated for the full term of her sentence,
or, in the alternative, whether she should serve the balance of her sentence in split confinement. We
directed the trial court to base its sentencing determination as to the manner of service of Defendant's
sentence on the current record without a further evidentiary hearing. State v. Blackhurst, 70 S.W.3d
88 (Tenn. Crim. App. 2001). On remand, the trial court found that Defendant was not entitled to
alternative sentencing and ordered Defendant to serve her sentence in confinement. Defendant now
appeals her sentence arguing that (1) the trial court erred in denying Defendant's request for
alternative sentencing; (2) the trial court erred in not considering additional evidence concerning
Defendant's post-sentencing behavior; (3) that the trial court erred in not allowing Defendant credit
for the time served on probation prior to resentencing; and (4) that the trial court improperly weighed
the applicable mitigating and enhancement factors in determining the manner of service of
Defendant's sentence. After a thorough review of the record in this matter, 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. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Richard A. Spivey, Kingsport, Tennessee, for the appellant, Darlene Renee Blackhurst.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and James Goodwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

1. Procedural Background

        Defendant's convictions arose out of an automobile accident on December 5, 1998. That
evening, Defendant exited the interstate and struck the victims' car causing serious bodily injury to
the three occupants. Defendant immediately left the scene of the accident without assisting the
victims or ascertaining the extent of their injuries. Defendant was later apprehended after a second
accident in which she struck a guardrail and mailbox. Defendant's blood alcohol level was
determined to be 0.23.

        Defendant pled guilty to three counts of reckless aggravated assault, a Class D felony; one
count of leaving the scene of an accident with injury, a Class A misdemeanor; and a second offense
DUI, a Class A misdemeanor. Pursuant to the terms of a negotiated plea agreement, the trial court
imposed concurrent three-year sentences for each of the felonies, and concurrent eleven month,
twenty nine days sentences for each of the misdemeanor convictions. The felony sentences were to
be served consecutively to the misdemeanor sentences for an effective sentence of three years, eleven
months and twenty-nine days, with a minimum of forty-five days mandatory confinement for the
DUI conviction.

        The trial court held a sentencing hearing to determine the manner of service of Defendant's
sentence. The trial court concluded that Defendant’s good work record, the ownership of her home
and her relatively good health served as positive factors. As a negative factor, the trial court
considered Defendant’s prior criminal record. The trial court also concluded that a victim’s impact
testimony could only be considered for purposes of determining the applicability of the statutory
mitigating and enhancement factors and was limited to the information contained in the victim’s
written impact statement. After balancing the positive and negative factors, the trial court
determined that Defendant was entitled to alternative sentencing and ordered Defendant to serve the
balance of her sentence on intensive supervised probation. The State appealed arguing first that the
trial court improperly limited its consideration of the victim’s testimony in its sentencing
determinations and, secondly, that the trial court erred in granting Defendant full probation.

        On appeal, we agreed with the State that the trial court misunderstood the role of a victim’s
impact testimony in sentencing determinations. We concluded that a trial court should consider and
properly weigh in its sentencing determinations any relevant evidence provided by the victim
concerning not only enhancement and mitigating factors, but also the nature and circumstances of
the offense, arguments as to sentencing alternatives, sentencing principles or any other sentencing
consideration. State v. Blackhurst, 70 S.W.3d 88, 95 (Tenn. Crim. App. 2001), citing State v. Ring,
56 S.W.3d 577, 583 (Tenn. Crim. App. 2001). Because we concluded that the trial court misapplied


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the law concerning the consideration of a victim’s testimony in its sentencing determinations, our
review of Defendant’s sentencing was de novo without a presumption of correctness.

        Based upon our de novo review, this Court determined that Defendant had failed to establish
her suitability for full probation but did so on sentencing considerations other than the victim’s
testimony. The record revealed that Defendant had a history of alcohol abuse as evidenced by her
prior DUI convictions yet had made no efforts to seek help for this problem. In addition, Defendant
did not disclose an additional DUI conviction in North Carolina when the pre-sentence report was
prepared. Despite two prior DUI convictions and one prior conviction for leaving the scene of an
accident, Defendant had only spent a total of forty-eight hours in confinement thus evidencing that
measures less restrictive than confinement had proven unsuccessful in altering Defendant’s criminal
conduct. Finally, this Court found that “the record contain[ed] ample evidence that Defendant’s
actions were sufficiently reprehensible and offensive to deny full probation.” Blackhurst, 70 S.W.3d
at 98. Accordingly, we remanded the matter to the trial court for the limited purpose of determining
whether Defendant’s sentence should be served by split confinement or total incarceration. Id. The
trial court was directed to base its determinations on this Court’s conclusions on appeal, the current
record and the considerations in Tennessee Code Annotated section 40-35-103 without conducting
any further evidentiary hearings. Id. at 99.

        On remand, Defendant requested the opportunity to introduce evidence concerning her
exemplary conduct and successful completion of the conditions of her probation since her initial
sentencing hearing. The trial court denied Defendant’s request for an evidentiary hearing but
pursuant to Rule 103 of the Tennessee Rules of Evidence allowed Defendant to offer the testimony
of her probation officer, daughter and sister, as well as make a statement in her own behalf. At the
conclusion of Defendant’s offer of proof, the trial court declined to include consideration of
Defendant’s post-sentence conduct within its determinations. The trial court adopted all of its
previous findings not in conflict with the opinion of this Court as well as all of the findings
articulated by this Court on appeal. The trial court also considered the victim’s testimony at the prior
sentencing hearing concerning the financial, physical and emotional difficulties caused by
Defendant’s conduct. Although the trial court noted that Defendant was entitled to a presumption
of alternative sentencing even on remand, the trial court determined that the negative factors
outweighed the positive factors and ordered Defendant to serve her sentence in confinement.

2. Standard of Review

        When a defendant challenges the length or the manner of service of his or her sentence, this
Court must 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); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002). This presumption, however, is contingent upon an affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances. State v.
Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).


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        In making its sentencing determinations the trial court must consider: (1) the evidence
presented at the trial and sentencing hearing; (2) the pre-sentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct; (5) any appropriate enhancement and mitigating factors; (6) the defendant’s
potential or lack of potential for rehabilitation or treatment; and (7) any statements made by
Defendant in his own behalf. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Williams, 920
S.W.2d 247, 258 (Tenn. Crim. App. 1995). If the trial court has imposed a lawful sentence by
following the statutory sentencing procedure, given due consideration and proper weight to the
factors and sentencing principles, and made findings of fact adequately supported by the record, this
Court may not modify the sentence even if it would have preferred a different result. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of
showing that his sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

3. Denial of Alternative Sentencing

        Defendant’s primary argument rests upon her conclusion that the trial court did not properly
follow this Court’s mandate. Defendant contends first that the trial court made no finding that the
State had rebutted the presumption that Defendant is entitled to alternative sentencing. Secondly,
Defendant argues that the trial court erred in not considering evidence at the resentencing hearing
concerning Defendant’s post-sentence conduct which Defendant submits is highly probative that she
is a good candidate for alternative sentencing.

        Because Defendant does not fall within the class of offenders for whom incarceration is a
priority and is a standard offender convicted of a Class D felony, Defendant is presumed to be an
eligible candidate for alternative sentencing. Tenn. Code Ann. §§ 40-35-102(5) and (6). If the trial
court, however, is presented with evidence sufficient to overcome the presumption, then it may
sentence a defendant to confinement. Ashby, 823 S.W.2d at 169. Each case is determined on its own
facts and circumstances. State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

         Although Defendant argues that the trial court improperly weighed the mitigating and
enhancement factors in arriving at its determination that she should be denied alternative sentencing,
the weight attributed to each factor is in the discretion of the trial court so long as the record supports
its findings and the findings comply with sentencing principles. State v. Carter, 908 S.W.2d 410,
412 (Tenn. Crim. App. 1995) perm. to appeal denied (Tenn. 1995). The weight placed on one factor
by the trial court may vary from that assigned to another, and the legislature has specifically declined
to assign a numerical value to mitigating and enhancement factors. Sentencing Commission
Comments, Tenn. Code Ann. § 40-35-210; State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App.
1996) perm. to appeal denied (Tenn. 1996). Tenn. Code Ann. § 40-35-113. Defendant points out
that the trial court found as positive factors that Defendant was employed, in relatively good health
and expressed some remorse over her conduct. Tenn. Code Ann. § 40-35-113(13). Defendant
argues that the single enhancement factor based on Defendant’s prior criminal record does not
outweigh the mitigating factors. Id. -114(1).


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        At the sentencing hearing, the trial court did not make a specific finding as to the weight
given to the mitigating and enhancement factors. Consideration of mitigating and enhancement
factors, however, is only one part of the equation used to determine Defendant’s sentence. The trial
court began its considerations by noting that Defendant was entitled to the presumption that she is
entitled to alternative sentencing. The trial court then considered all of the negative and positive
factors contained in the current record, Defendant’s prior criminal record and the victim’s testimony
concerning the emotional, physical and financial impact of Defendant’s conduct. Based on these
considerations, the trial court determined that confinement was the appropriate sentence.

        A trial court may determine if incarceration rather than alternative sentencing is appropriate
if the evidence shows that:

        (A) [c]onfinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;
        (B) [c]onfinement 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) [m]easures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant . . .

Tenn. Code Ann. § 40-35-103(1)(A)-(C). In its determinations, the trial court may also consider the
defendant’s potential or lack of potential for rehabilitation and any mitigating or enhancement factors
that are relevant to sentencing. Tenn. Code Ann. § 40-35-103(5), 40-35-210(b)(5); State v. Boston,
938 S.W.2d 435, 438 (Tenn. Crim. App. 1996).

        The evidence before the trial court clearly indicated that measures less restrictive than
confinement had been unsuccessful in the past based on Defendant’s prior convictions for similar
offenses. Tenn. Code Ann. 40-35-103(1)(C). Although Defendant had spent only a minimum time
in confinement, she continued to engage in the same criminal behavior that was reflected in the
current offenses. A trial court may also consider whether the defendant has previously engaged in
criminal conduct of the same type as the current offense in determining whether incarceration is
necessary for the specific deterrence of the defendant. Id. -103(1)(C); State v. Hooper, 29 S.W.3d
1, 12 (Tenn. 2000). Moreover, Defendant’s lack of candor concerning her criminal record during
the preparation of the pre-sentence report reflects negatively on her potential for rehabilitation. State
v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim.
App. 1999). Although Defendant was charged with and pled guilty to a second DUI offense, the
current offense was actually her third DUI conviction.

        Finally, the trial court specifically adopted this Court’s finding on appeal that Defendant’s
actions were sufficiently offensive and reprehensible to require some period of confinement in order
to avoid depreciating the seriousness of the offense. Tenn. Code Ann.§ 40-35-103(1)(B). See State
v. Fields, 40 S.W.3d 435, 441 (Tenn. 2001) (A finding that the nature and circumstances of the
offense are especially “reprehensible [or] offensive” may sufficiently rebut the presumption that


                                                  -5-
Defendant is entitled to alternative sentencing if the nature of the offense outweighs all other
factors.)

        Based on our review of the record, we find that the evidence was sufficient to rebut the
presumption that Defendant is entitled to alternative sentencing. Defendant is not entitled to relief
on this issue.

4. Failure to Conduct an Evidentiary Hearing

         Defendant contends next that the trial court erred in not granting her request for an
evidentiary hearing for the purpose of introducing evidence concerning Defendant’s post-sentence
conduct. Defendant argues that this Court’s directive merely relieved the trial court of the need to
hold an evidentiary hearing but did not prohibit the trial court’s consideration of additional evidence
if it chose to do so. Even if a further evidentiary hearing were prohibited, Defendant argues that the
prohibition banned the introduction of evidence already available at the time of Defendant’s
sentencing and not evidence as to events transpiring since the State’s appeal. We disagree with both
of Defendant’s interpretations. This Court’s mandate to the trial court to base its sentencing
determinations on the record then available could not be clearer.

        “The appellate court directs actions and dictates results through its orders, judgments, and
mandates” and may limit the scope of a remand. State v. Williams, 52 S.W.3d 109, 123 (Tenn.
Crim. App. 2001); State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995); Cook v. McCullough, 735
S.W.2d 464, 470 (Tenn. App. 1977). Such orders and mandates are controlling, and the lower court
does not have “the authority to expand the directive or purpose of [the higher] court imposed upon
remand.” State v. Weston, 60 S.W.3d 57, 59 (Tenn. 2001); Cook, 735 S.W.2d at 470. Otherwise,
“‘[t]here would be no finality or stability in the law and the court system would be chaotic in its
operation and unstable and inconsistent in its decision.’” Irick, 906 S.W.2d at 443, (quoting Barger
v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976)).

       On appeal, we directed the trial court as follows:

               In sum, we cannot find that full probation is in the best interest of the
       defendant or the public. Whether the factors favoring a sentence involving split
       confinement generally outweigh the factors favoring continuous confinement in this
       case have not been fully analyzed. Accordingly, we remand this matter to the trial
       court to order either split confinement for the balance of the sentence or total
       incarceration. The trial court should make this determination in light of our
       conclusions above, all of the testimony previously heard at the sentencing hearing,
       and the sentencing considerations in Tennessee Code Annotated section 40-35-103.
       The trial court’s decision should be based upon the current record. No further
       evidentiary hearings are necessary.

Blackhurst, 70 S.W.3d at 98-9.


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        This Court’s remand to the trial court clearly limited the issue on remand to whether
Defendant should serve her sentence in split confinement or total incarceration based on the then
current record. The trial court correctly determined that it was not at liberty to reopen Defendant’s
sentencing on remand nor consider any additional evidence presented by Defendant in its sentencing
determinations. Defendant is not entitled to relief on this issue.

5. Credit for Probationary Service

        Defendant next contends that she should be given credit against the sentence of confinement
imposed by the trial court at the resentencing hearing for the time she spent on intensive probation
during the pendency of the State’s appeal. At the resentencing hearing, Defendant’s probation
officer, Frank Murray, stated that Defendant commenced her probation in August, 2000. Between
that time and the date of the resentencing hearing, Mr. Murray informed the trial court that
Defendant had complied with all of her conditions of probation initially imposed by the trial court
including the completion of her community service hours, payment of court costs, and the passing
of all drug tests.

         The record indicates that Defendant was indicted on March 31, 1999 and entered a guilty plea
to the offenses charged on January 10, 2000. On March 13, 2000, Defendant filed an appearance
bond. A sentencing hearing was held on June 30, 2000 after which the trial court ordered Defendant
to serve her sentence on intensive probation. The State filed an appeal on July 26, 2000 challenging
the trial court’s grant of full probation. Generally, at the time that Defendant was initially sentenced,
if a defendant who is not otherwise disqualified has been admitted to bail prior to his or her arrest
or indictment, the bail bond continues through appellate review unless the trial court, the court of
criminal appeals or the supreme court orders the defendant to post additional bail or submit a new
bail bond. Tenn. Code Ann. § 40-11-113(a)(2).

         On appeal, Defendant argues that she is entitled to credit against her sentence for the time
she spent on probation from August 2000 to May 2002. A defendant is responsible for his or her
entire sentence without any credits except those specifically permitted by statute, none of which
apply to Defendant’s situation. See Tenn. Code Ann. §§ 40-35-211, 40-23-101 relevant to pretrial
jail credit, 33-5-306 and 33-7-102 relevant to medical treatment and 40-23-101 relevant to prisoner
sentence reduction credits. A probation sentence is not credited in the same manner as a sentence
of incarceration because the two sentences are not equivalent. Obviously, “probation is a
significantly less severe restraint of liberty than incarceration.” State v. Hunter, 1 S.W.3d 643, 648
(Tenn. 1999). The time a defendant spends on probation, therefore, is not counted toward completion
of a defendant’s sentence unless the entire term of the probation is completed. Id., citing State v.
Taylor, 922 S.W.2d 941 (Tenn. 1999). Extending Defendant credit against her sentence of
incarceration for the period spent on probation would essentially allow Defendant to serve her
sentence in split confinement rather than total incarceration as ordered by the trial court. Defendant
is not entitled to relief on this issue.




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                                        CONCLUSION

        After of careful review of the record and the arguments of counsel, we affirm the judgment
of the trial court.

                                                     ____________________________________
                                                     THOMAS T. WOODALL, JUDGE




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