        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs September 19, 2012 at Knoxville

             STATE OF TENNESSEE v. MEMORY GAYLE HALL

                Appeal from the Circuit Court for Williamson County
                  No. II-CR03550      James G. Martin, III, Judge


              No. M2012-00499-CCA-R3-CD - Filed December 27, 2012


The Defendant, Memory Gayle Hall, entered open pleas of guilty to driving under the
influence of an intoxicant (DUI), speeding, and failing to provide evidence of financial
responsibility. At sentencing, the trial court ordered her to serve forty days on consecutive
weekends in the county jail, followed by probation for the balance of the eleven months and
twenty-nine day sentence. She challenges the trial court’s denial of full probation,
contending that she was a favorable candidate. After reviewing the record and applicable
authorities, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Vanessa Pettigrew Bryan, District Public Defender; and Robert W. Jones, Assistant Public
Defender, for the appellant, Memory Gayle Hall.

Robert E. Cooper Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Kim R. Helper, District Attorney General; Kelly A. Lawrence and Mary Katharine
White, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                               FACTUAL BACKGROUND

       The Defendant was indicted for DUI, a Class A misdemeanor; speeding, a Class C
misdemeanor; and failing to provide evidence of financial responsibility, a Class C
misdemeanor. The Defendant entered open pleas to all of the offenses on January 24, 2012.
That same day, the Defendant’s sentencing hearing was held. The relevant facts from that
hearing were as follows.

        Sergeant Ronald Conner testified that he was a patrol sergeant for the City of
Fairview, and on November 8, 2010, around 7:00 p.m., he was on duty when he encountered
the Defendant. He testified that as he made a right onto Fairview Blvd., approaching Park
Village Apartments, he noticed a car that was exceeding the speed limit. After verifying via
radar that the car was in fact going fifty-eight miles-per-hour in a forty-five miles-per-hour
zone, he turned to pursue the car. The car then turned into the Tractor Supply parking lot;
the Tractor Supply store was closed. The Defendant parked in a handicapped parking spot.
Sgt. Conner explained that Reserve Officer Matthew Tidwell, who was “just learning,” was
also with him in the patrol car that day. Off. Tidwell approached the car and asked the
Defendant for her license, registration, and proof of insurance. The Defendant was having
trouble producing the requested documents, so Sgt. Conner approached the car to assist Off.
Tidwell. Sgt. Conner approached the driver’s side of the Defendant’s car and noticed that
“her eyes were glassy and watery, and she was -- like she was having trouble concentrating
on what Off. Tidwell was asking her, so [he] asked her again to produce her license,
registration and proof of insurance.” The Defendant finally produced both her license and
registration but informed Sgt. Conner that she did not have insurance.

        After verifying the validity of her license, Sgt. Conner had the Defendant perform the
following field sobriety tests: the horizontal gaze nystagmus, the one-leg-stand, and the walk-
and-turn tests. The Defendant denied that she had consumed any alcoholic beverages or
medication that day but later admitted to consuming Xanax around 5:00 p.m. Sgt. Conner
then testified that the Defendant performed unsatisfactorily on both the one-leg-stand and
walk-and-turn tests. The video recording of the Defendant performing the field sobriety tests
was then played for the judge without objection.1 The video supported Sgt. Conner’s
testimony regarding the Defendant’s performance of the field sobriety tests. Sgt. Conner
testified that he then placed the Defendant under arrest for driving while impaired.
Sgt.Conner explained that he also searched the Defendant’s purse and found three
prescription bottles and a straw that was made from an ink pen.2 He testified as to the
contents of each bottle: one pill bottle was empty, and it was prescribed to Jonathan Hall, the
Defendant’s husband; a second pill bottle contained twenty whole pills and three half pills
of Alprazolam/Xanax, two milligrams; and the final pill bottle contained five whole pills of
Oxycodone, thirty milligrams. Both the second and third pill bottles were prescribed to the
Defendant. Sgt. Conner explained that the second pill bottle, Xanax, contained twenty pills


1
    The video did not have audio because the “audio pack” was being repaired.
2
 He explained that he believed the straw was drug paraphernalia but admitted that she was not charged with
that offense.

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and three halves, but the bottle noted that only nine pills were prescribed. He also explained
that the third pill bottle, containing Oxycodone, had just been written seven days earlier for
190 pills but only contained five pills at the time of arrest.

       Sgt. Conner testified that the Defendant’s husband came to the scene to pick up her
car and that he overheard Mr. Hall tell the Defendant, “I told you this was going to happen,
and sooner or later it was going to happen.” According to Sgt. Conner, the Defendant never
refuted her husband’s statement. In concluding its proof, the State admitted several certified
documents illustrating the Defendant’s prior involvement with drugs.

       The Defendant also testified at the sentencing hearing. She told the court that she
lived with her husband and two children, ages nine and four. The Defendant explained that
she was employed as a certified nurse’s assistant working with an eighty-eight-year-old
woman who had Alzheimer’s disease and that her employer had written a letter to the court
explaining how good she was at her job. The Defendant also explained that she was
responsible for caring for her children during the day because she was allowed to take them
to work with her and that her husband was unable to do so. She also testified about some
personal hardships that she had dealt with over the last few years: a prior drug problem, for
which she attended drug court; multiple injuries sustained from a car wreck, requiring long-
term use of painkillers; and the death of her father, precipitating her use of Xanax.

       The Defendant testified that she had taken Oxycodone the morning of November 8,
2010, and that she had also taken Xanax. She stated that she did not believe she was
impaired. The trial court then asked the Defendant a series of questions regarding her plans
for eradicating her issue of drug dependency. The Defendant explained that she had already
been weaning herself off of the Oxycodone and Xanax and that she only had a few pills
remaining. She also suggested that she should get a sponsor and join a twelve-step program.
While the Defendant acknowledged that she had tried that before, unsuccessfully, she
insisted that this time would be different because it was not mandatory; she was “doing it on
[her] own.”

        In sentencing the Defendant, the trial court utilized the sentencing considerations
typically reserved for imposing felony sentences because it thought they were “important in
misdemeanor sentencing” as well. First, the trial court considered whether confinement was
necessary to protect society by restraining a person who has a long history of criminal
conduct. The trial court stated, “from the video it’s clear to the Court that Mrs. Hall was
severely impaired” and suggested that the traffic stop was an “intervening event” that was
fortunate for the Defendant, her family, and the community because she could have caused
an accident and killed one of them or someone else. However, the trial court doubted that
the facts rose to the level of making confinement necessary to protect society. Turning to the

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second sentencing consideration, the trial court did find that confinement was necessary to
avoid depreciating the seriousness of the offense, explaining that this was not the
Defendant’s “first experience with abuse of drugs. She has a long history of it, four prior
convictions, probation, violation of probation, failure at drug court.” Finally, the trial court
determined that less restrictive measures had been applied unsuccessfully to the Defendant,
noting that probation nor drug court “seemed to work.” Also, the trial court was impressed
with the statement that the Defendant’s husband made to her at the scene: that he had warned
her that “this was going to happen sooner or later.”

        After considering applicable enhancement factors, the Defendant’s criminal history
and past difficulty in complying with the conditions of release, and finding no mitigating
factors, the trial court sentenced the Defendant to eleven months and twenty-nine days for
DUI. Regarding the Defendant’s convictions for speeding and violating the financial
responsibility law, the trial court imposed a thirty-day sentence for each offense, to run
concurrent to Count 1.3 The sentence was to be served on probation except for twenty
consecutive weekends in jail. The trial court further imposed a $350 fine and revoked the
Defendant’s license for one year. As a condition of probation, the Defendant was required
to get a sponsor, get involved with a twelve-step program, attend at least three meetings each
week, undergo a drug and alcohol assessment and follow all recommendations, and to cease
her use of Oxycodone unless approved by the court.

                                                ANALYSIS


       The Defendant contends that the trial court erred in failing to grant her full probation.
The State responds that the trial court properly determined that the Defendant’s offenses
required some form of incarceration and properly denied full probation.

       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). 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).



3
    The trial court did not impose fines for Counts 2 and 3.

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        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 should consider enhancement and mitigating factors in making its sentencing
determinations; however, unlike the felony sentencing statute, which requires the trial court
to place its findings on the record, the misdemeanor sentencing statute “merely requires a
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). In misdemeanor sentencing, the trial court retains the authority to
place the defendant on probation either immediately or after a time of periodic or continuous
confinement. Tenn. Code Ann. § 40-35-302(e)(1)-(2). The trial court is required to set a
percentage of the sentence that the defendant must serve before becoming eligible for certain
release programs. Tenn. Code Ann. § 40-35-302(d). Such percentage must not be more than
seventy-five percent. Tenn. Code Ann. § 40-35-302(d).

        The standard of review for misdemeanor sentencing is de novo with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d)(2010).
However, the record must reflect that the trial court considered the relevant facts,
circumstances, and sentencing principles, or the presumption fails. See State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The party challenging the sentence imposed by the trial court
has the burden of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-
401, Sentencing Comm’n Comts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

       A defendant seeking full probation bears the burden of showing that probation will
“‘subserve the ends of justice and the best interest of both the public and the defendant.’”
State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990) (quoting Hooper v. State, 201
Tenn. 156, 297 S.W.2d 78, 81 (Tenn. 1956)), overruled on other grounds by State v. Hooper,
29 S.W.3d 1, 9-10 (Tenn. 2000). Among the factors applicable to probation consideration
are the circumstances of the offense, the defendant’s criminal record, social history, and
present condition, the deterrent effect upon the defendant; and the best interests of the
defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

       Although the Defendant was not convicted of a felony, the trial court noted the
following felony sentencing considerations.

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

       (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

                                             -5-
       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant[.]


Tenn. Code Ann. § 40-35-103(1)(A)-(C); see also Hooper, 29 S.W .3d at 5. A trial court
should also consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. Tenn. Code. Ann. § 40-35-
103(5); Boston, 938 S.W.2d 435 at 438. Ultimately, in sentencing a defendant, a trial court
should impose a sentence that is “no greater than that deserved for the offense committed”
and is “the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

        In the instant case, the trial court was guided by the above sentencing considerations
in making its determination. The trial court found that incarceration was necessary to avoid
depreciating the seriousness of the Defendant’s offenses and that less restrictive measures
had been frequently or recently applied to the Defendant. In sentencing the Defendant, the
trial court noted that the Defendant had a history of criminal conduct involving drugs and
determined that some form of incarceration was necessary. The record reflects that the trial
court properly considered the principles of sentencing and all the relevant facts and
circumstances in imposing the Defendant’s sentence. Therefore, the Defendant has failed
to meet her burden and is not entitled to relief on this issue.


                                      CONCLUSION


       For the foregoing reasons, we affirm the judgments of the trial court.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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