        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs July 20, 2005

                    STATE OF TENNESSEE V. DENNY FINNEY

                 Direct Appeal from the Circuit Court for Franklin County
                           No. 15232    Buddy D. Perry, Judge



                  No. M2004-02798-CCA-R3-CD - Filed September 20, 2005


The Defendant, Denny Finney, pled guilty to misdemeanor simple possession of a schedule VI
substance, and the State agreed to dismiss the other counts against him. The trial court sentenced
the Defendant to eleven months and twenty-nine days suspended, except for six months to serve in
jail. On appeal, the Defendant contends that the trial court erred when it sentenced him. After
thoroughly reviewing the record and the applicable authorities, we affirm the Defendant’s sentence.


      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 JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Francis W. Pryor, Jr., Jasper, Tennessee (on appeal) and David O. McGovern, Jasper, Tennessee (at
trial) for the Appellant, Denny Finney.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

        This case arises from the Defendant’s conviction for misdemeanor simple possession of a
schedule VI controlled substance, marijuana. A Franklin County Grand Jury originally indicted the
Defendant for one count of possession of a schedule II controlled substance, one count of possession
of a schedule IV controlled substance, one count of driving under the influence, and one count of
driving under the influence fourth offense. The Defendant pled guilty to simple possession of a
schedule VI controlled substance, marijuana, a Class A misdemeanor, and he was sentenced to
eleven months and twenty-nine days suspended, except for six months to be served in jail.
        The following evidence was presented at his sentencing hearing: The Defendant testified that
he is married with two children and two grandchildren, and one of his children lives at home with
him. He said that he is not currently working because he has to stay home with his wife, who is
disabled. He explained that his wife rarely leaves home, and he has to assist her to the bathroom and
in other daily activities. The Defendant testified that he is responsible for “everything,” including
the cooking, cleaning, and grocery shopping. He said that his family pays their bills with his wife’s
disability check. The Defendant stated that his twelve-year-old child lives with him full-time, and
she has a learning disorder so he has to watch her closely.

        The Defendant admitted that he pled guilty to simple possession of marijuana. He said that
he “did smoke a little bit,” and he was sorry. The Defendant testified that he used to have a drinking
problem, but he quit drinking after he got his last DUI in 1997. He stated that on the night he got
arrested he had been up with his wife, who has panic attacks, for about three or four days, and he
“just needed to get out, go pay some bills that night.” The Defendant testified that he checked his
mail and stopped to get some non-alcoholic drinks. The Defendant testified that, later that evening,
he was found at the Sonic parking lot where he fell asleep because he was tired. The Defendant was
taken to the hospital because he would not wake up, and, at the hospital, the doctors were unable to
get a blood sample because the Defendant has psoriasis on his arms and legs. The Defendant asked
the hospital if they wanted to take a urine or breath test, but he was told that was unnecessary. He
agreed that, at that time, he was under the influence of marijuana, and he was in possession of
marijuana.

        On cross-examination, the Defendant testified that he has prescription medication,
Lorazepam, but he did not take pills on the night he was arrested. He conceded that, if he had taken
Lorazepam pills and smoked marijuana, it would have made him “pass out.” The Defendant testified
that he has two prior DUI offenses, in 1995 and 1997, and he agreed that he was also convicted of
child endangerment. He explained that, during one of his DUI offenses, the child who lives with him
full-time was in the vehicle, and he quit drinking based on that incident. The Defendant testified that
in 1997 he was convicted of leaving the scene of an accident, and in 1993 he was convicted of public
intoxication. He agreed that he had previous marijuana convictions in 1993, 1997, and 1999.

      At the conclusion of the sentencing hearing, the trial court sentenced the Defendant to eleven
months and twenty-nine days in jail suspended, except for six months to be served in jail. The
Defendant now appeals, contending that the trial court’s judgment that the Defendant serve six
months in jail is contrary to the sentencing guidelines.

                                             II. Analysis

        The Defendant contends that the trial court erred when it sentenced him because it did not
set forth on the record the factors that it used to determine the Defendant’s sentence. Further, the
Defendant asserts that, because the presentence report was not admitted into evidence, it is unclear
whether the report impacted the trial court’s sentence. The State asserts that the trial court properly
sentenced the Defendant. We agree with the State.


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         When a defendant challenges the length and manner of service of a sentence, it is the duty
of this court to conduct a de novo review of the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). 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. Ross,
49 S.W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999); State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing a defendant or to the determinations made by the trial court
that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App.
2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994).

         In conducting a de novo review of a sentence, we must consider: (a) any evidence received
at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles of sentencing; (d)
the arguments of counsel relative to sentencing alternatives; (e) the nature and characteristics of the
offense; (f) any mitigating or enhancement factors; (g) any statements made by the defendant on his
or her own behalf; and (h) the defendant’s potential or lack of potential for rehabilitation or
treatment. See Tenn. Code Ann. § 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The party challenging a sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2003), Sentencing
Commission Cmts.

        In the case under submission, the Defendant was convicted of a class A misdemeanor. In
misdemeanor sentencing, the sentence imposed must be specific and consistent with the purposes
and principles of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-302(b)
(2003). 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 trial court must consider
enhancement and mitigating factors, as well as the purposes and principles of the Criminal
Sentencing Reform Act of 1989, and the trial court should not impose such percentages arbitrarily.
Tenn. Code Ann. § 40-35-302(d). The Tennessee Supreme Court has observed that “[i]n addition
to the statutory considerations for issuing sentences of confinement, 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). Our Supreme Court has noted that trial courts have more flexibility
in misdemeanor sentencing that in felony sentencing. See Troutman, 979 S.W.2d at 273. Further,
our Supreme Court has held that in misdemeanor sentencing a trial court is not required to place
specific findings on the record. Troutman, 979 S.W.2d at 274.

        A defendant is eligible for alternative sentencing if the sentence actually imposed is eight
years or less. Tenn. Code Ann. § 40-35-303(a) (2003). While certain Class C, D, or E offenders are
entitled to a presumption in favor of probation, Tennessee Code Annotated section 40-35-102(6),
the Defendant is entitled to no such presumption regarding his misdemeanor sentence. See State v.


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Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). In determining whether to grant or deny
probation, the trial court may consider the following: the circumstances of the offense; the
defendant’s criminal record; background and social history; the defendant’s physical and mental
health; the deterrent effect on other criminal activity; and the likelihood that probation is in the best
interests of both the public and the defendant. State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim.
App. 1996). The Defendant bears the burden of establishing suitability for probation. Tenn. Code
Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169. Sentences involving confinement should be based
upon the following 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
        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103 (2003).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence, even if we would have preferred a different
result. Sate v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the case under
submission, the record demonstrates that the trial court properly considered relevant sentencing
principles. Accordingly we apply the presumption that the trial court’s sentencing determinations
are correct. See Tenn. Code Ann. § 40-35-401(d).

        Upon the conclusion of the Defendant’s sentencing hearing, the trial court stated:

               You just can’t keep coming back and we just keep saying go away and please
        don’t do this any more. We beg folks not to do things. There has to be some
        consequences at some point and with this record there has to be clear consequences.

                I’m going to sentence him to a [$250] fine, 11 months and 29 days in the
        county jail and I’m going to suspend all but six months. I’m going to require him to
        serve six months of the sentence. I’ll give him 30 days to report to the Franklin
        County Jail so he can make some arrangements about the family situation. Draw an
        order accordingly.

In this case, the record reflects that the trial court reviewed a copy of the Defendant’s presentence
report. The trial court considered that the Defendant had a substantial history of prior convictions,
including three other prior convictions for possession of marijuana that resulted in suspended


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sentences. The trial court concluded that the Defendant needed “clear consequences” to his actions,
and, thus, it sentenced him to split confinement. We conclude that the evidence does not
preponderate against the trial court’s finding, and, therefore, we affirm the trial court’s judgment.


                                         III. Conclusion

        In accordance with the foregoing, we conclude that the trial court committed no reversible
error in sentencing the Defendant. Therefore, the judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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