             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                         JANUARY SESSION, 1999


                                                               FILED
STATE OF TENNESSEE,          )                                 February 3, 1999
                             )    No. 02C01-9808-CC-00246
      Appellee               )                                Cecil Crowson, Jr.
                             )    CHESTER COUNTY               Appellate C ourt Clerk
vs.                          )
                             )    Hon. John Franklin Murchison, Judge
PHENIX H. ROSS,              )
                             )    (Possession of Marijuana)
      Appellant              )



For the Appellant:                For the Appellee:

C. Michael Robbins                John Knox Walkup
46 North Third Street             Attorney General and Reporter
Suite 719
Memphis, TN 38103                 Elizabeth T. Ryan
                                  Assistant Attorney General
(ON APPEAL)                       Criminal Justice Division
                                  425 Fifth Avenue North
George Morton Googe               2d Floor, Cordell Hull Building
District Public Defender          Nashville, TN 37243-0493
Michael Rasnake
Asst. Public Defender
227 West Baltimore Street         James G. (Jerry) Woodall
Jackson, TN 38301                 District Attorney General

(AT TRIAL)                        Nick Nicola
                                  Asst. District Attorney General
                                  P. O. Box 2825
                                  Jackson, TN 38302-2825




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Phenix H. Ross, 1 was found guilty by a Chester County jury of

possession of marijuana, a class A misdemeanor. At a subsequent sentencing

hearing, the trial court imposed a sentence of eleven months and twenty nine days,

suspending all but one hundred and twenty days with the balance of the sentence to

be served on supervised probation. The appellant now appeals the sentencing

decision of the trial court.



        After review of the record, we affirm.




                                            Background



        On February 11, 1997, at approximately 9:50 p.m., Henderson Police Officer

Ronnie Faulkner was called to a local Bull Market convenience store. The clerk at

the store directed the officer’s attention to the appellant who at the time was in his

vehicle on the parking lot with the engine running. As the car door opened, Officer

Faulkner detected a strong odor of alcohol. Faulkner requested that the appellant

perform a field sobriety test, which the appellant was unable to successfully execute.

The appellant was then arrested for driving under the influence and Faulkner

conducted a pat down search of his person. The pat-down resulted in the discovery

of a pack of rolling papers in the appellant’s front pocket. The appellant was placed

in the patrol car, and Officer Faulkner, now accompanied by Chester County Deputy

Weaver, conducted a search of the appellant’s vehicle. Faulkner discovered a white

plastic bag on the floorboard of the passenger’s side of the appellant’s car. The bag

contained, what was later confirmed to be, 1.7 grams of marijuana. The appellant



        1
         The indictment reflects that the appellant’s middle initial is “H.” The testimony developed
at the appellant’s trial indicates that the appellant’s middle name is Neshano.

                                                 2
was transported to the county jail where he refused to take a breathalyser test.2 He

was subsequently indicted for driving under the influence and possession of

marijuana. A jury found the appellant not guilty of the DUI charge but guilty as to the

possession charge.



        At the sentencing hearing, the State relied upon proof of the appellant’s two

prior DUI convictions. The appellant’s proof consisted of three character witnesses:

his minister, his wife, and his employer. The appellant’s minister testified that the

appellant occasionally attended church and worked for the church. The appellant’s

wife stated that she and the appellant had three children and that “he works every

day.” Finally, the appellant’s employer testified that the appellant had a “good

attendance record. He’s there on time. He is multi talented, versatile -- I depend on

him every day.”



        The trial court’s findings are noted as follows:

        I think an appropriate sentence in this case would be imprisonment for
        11 months and 29 days and a $500 fine. He has got to serve some jail
        time because he has two prior very super serious misdemeanors, and
        those being driving under the influence of an intoxicant, and, of course,
        in this case he did possess marijuana -- and he did possess rolling
        papers. I am not counting that as an enhancement or anything, and
        he wasn’t convicted of that. He did have it. I think an appropriate jail
        period would be 120 days.

        Accordingly, the defendant is sentenced to a period of imprisonment of
        11 months and 29 days, all suspended but 120 days, which he must
        serve. He can serve that on work release, if he can qualify with the
        Sheriff.



                                               Analysis



        Again, the appellant alleges that the trial court’s imposition of 120 days

incarceration is excessive. Specifically, the appellant complains that the trial court



        2
         The appellant’s refusal ultimately resulted in his driving privileges being suspended for a
period of six months pursuant to Tenn. Code Ann. § 55-10-406.

                                                  3
failed to consider his lack of criminal history, his stable employment, and his

responsibilities as provider for his family in determining an appropriate sentence. In

addressing the appellant’s challenge, we are mindful that our de novo review is

conditioned with the presumption that the sentencing determination of the trial court

is correct. See Tenn. Code Ann. § 40-35-401(d) (1997). Moreover, the appellant

bears the burden of establishing that the sentence imposed by the trial court is

improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).



       The misdemeanor offender must be sentenced to an authorized determinant

sentence with a percentage of that sentence designated for eligibility for

rehabilitative programs. See State v. Hailey, No. 02C01-9705-CR-00198 (Tenn.

Crim. App. at Jackson, May 14, 1998); see also Tenn. Code Ann. § 40-35-302

(1997). Notwithstanding this limitation, the court can grant probation immediately or

after a period of split or continuous confinement. See Tenn. Code Ann. § 40-35-

302(e). The governing statute is designed to provide the trial court with continuing

jurisdiction in misdemeanor cases and a wide latitude of flexibility. See Troutman,

979 S.W.2d at 273.



       In determining the appropriate term of confinement, the trial court should

consider that 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), and that the burden of establishing suitability for probation rests with the

defendant. Tenn. Code Ann. § 40-35-303(b). With these considerations, the trial

court should examine the misdemeanor offense in the light and character of the

circumstances of the offense as well as under the mandated sentencing principles.

State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3,

1996), perm. to appeal denied, (Tenn. Nov. 4, 1996)).



       In the present case, the appellant was convicted of a class A misdemeanor.


                                         4
The penalty for a Class A misdemeanor is a term of imprisonment “not greater than

eleven months, twenty nine days.” See Tenn. Code Ann. § 40-35-111(e)(1). In

sentencing the appellant, the trial court relied heavily upon the seriousness of the

appellant’s prior convictions for driving under the influence. The fact that the

appellant occasionally attended church, was a good employee, and provided for his

family do not outweigh the appellant’s prior criminal history and obvious failed

attempts at rehabilitation. Certainly, the trial court’s imposition of a sentence of one

hundred and twenty days confinement was consistent with the principles, purposes

and goals of the Sentencing Act and was not an abuse of the court’s discretion. The

appellant’s challenge is without merit.



       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:


__________________________________
JOE G. RILEY, Judge


__________________________________
JOHN EVERETT W ILLIAMS, Judge




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