        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE

                          JULY SESSION 1999
                                                      FILED
                                                     December 15, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk

STATE OF TENNESSEE,         )    NO.M1998-00402-CCA-R3-CD
                            )
      Appellee,             )
                            )
                            )    DICKSON COUNTY
VS.                         )
                            )    HON. ROBERT BURCH
BOBBY J. YOUNG,             )    JUDGE
                            )
      Appe llant.           )    (Direct Ap peal - D .U.I.)




FOR THE APPELLANT:               FOR THE APPELLEE:

THOMAS R. MEEKS                  PAUL G. SUMMERS
137 Franklin Street              Attorney General & Reporter
Clarksville, TN 37040
(On App eal Only)                LUCIAN D. GEISE
                                 Assistant Attorney General
REESE BAGW ELL                   425 Fifth Avenu e North
116 South Second Street          Nashville, TN 37243
Clarksville, TN 37041
(At Trial Only)                  DAN ALSOBROOKS
                                 District Attorney General

                                 ROBERT WILSON
                                 Assistant District Attorney
                                 Main Street
                                 Springfield, TN 37172



OPINION FILED ________________________

AFFIRMED IN PART; VACATED AND REMANDED IN PART

JERRY L. SMITH, JUDGE
                                   OPINION


      On January 7, 1997, the Dickson County Grand Jury indicted Appellant

Bobby J. Young for driving under the influence of an intoxicant (“DUI”), fourth

offense; driving on a revoked license (“DORL”), second offense; and violating the

open conta iner law.    Following a jury trial on May 20, 1997, Appellant was

convicted of fourth offense DUI, second offense DORL, and violating the open

container law. After a sentencing hearing on September 12, 1997, the trial court

imposed sentences of eleven months and twenty-nine days for the fourth offense

DUI conviction, eleven months and twenty-nine days for the second offense

DORL conviction , and thirty days for the open container violation. In addition, the

sentences for fourth offense DUI and second offense DORL were ordered to run

cons ecutive ly to each other and the sentence for the open container violation was

ordered to run concurrently with the other se ntence s. Appe llant challen ges bo th

his convictions and his sentences, raising the following issues:

      1) whether the indictment was defective;
      2) whether it was unconstitutional to ask App ellant to sub mit to a bre ath
      analysis te st;
      3) whether the trial court erred when it allowe d a po lice office r to give h is
      opinion a bout Ap pellant’s leve l of intoxication at the time of arrest;
      4) wheth er the tr ial cou rt erred when it instructed the jury that Ap pellan t’s
      refusal to submit to a breath analysis test could be considered against him;
      5) whether the evidence was sufficient to support Appellant’s convictions;
      6) whether evidence of Appellant’s prior convictions was properly admitted
      into evidence;
      7) whether the prior convictions used to enhance App ellant’s DUI
      conviction to fourth offense DUI are void on their face;
      8) whether the trial court erred when it failed to instruct the jury about the
      State ’s burden of proving that Appellant was the same individual who was
      convicted of the prior DUI offenses;
      9) whether the trial court properly considered convictions listed in the
      presen tence re port whe n it senten ced Ap pellant;
      10) whether the trial court imposed excessive sentences; and
      11) whether the trial cou rt erred when it imposed consecutive sentencing.



                                         -2-
After a review of the record, we affirm the judgment of the trial court in part and

vacate th e judgm ent in part.



                                      I. FACTS




       On November 4, 1998, Appellant filed a motion in which he aske d this

Court to acce pt an a ttache d state men t of facts in lieu of a properly filed record.

On Nove mbe r 19, 19 98, this Court denied the motion and ordered Appella nt to

either have the trial transcripts prepared and filed as a sup plem ental re cord o r file

a statement of the evidence and a motion to supplement the record with the trial

court pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure.

Desp ite this Court’s express directions, Appellant has failed to have the trial

transcripts filed as a supplemental record and has failed to file a statement of

evidence in the trial court pursuant to R ule 24(c).



       Because of Appellant’s failure to comply with this Court’s order to prop erly

supplement the record, we have only a vague outline of the facts o f this case. It

appears that on July 1 9, 1996 , Depu ty Derrick J ones o f the Dicks on Co unty

Sher iff’s Office rec eived a re port that an intoxicated individual was driving a

vehicle on Hig hway 49 ne ar Ch arlotte, T enne ssee . Depu ty Jone s sub sequ ently

stopped the vehicle and observed that Appellant was the driver. W hen D eputy

Jones approached the vehicle, he smelled the odor of alcohol and he saw an

open can of b eer on the floo r. App ellant th en ad mitted that he had n o drive r’s

license and state d that he d id not wan t to perform a field sob riety test because

he was drunk.




                                           -3-
                     II. SUFFICIENCY OF THE INDICTMENT




       Appe llant contends that the indictme nt in this cas e was ins ufficient to

charge him w ith fourth offens e DU I and s econ d offen se DO RL. S pecifically,

Appellant conten ds that the indictme nt was ins ufficient be cause it fails to com ply

with the req uireme nts of Tennessee Code Annotated section 55-10-403, which

states, in re levant pa rt,

       In the prosecution of second or subsequent offenders, the indictment or
       charging instrument must allege the prior conviction or convictions for
       violating any of the provisions of §§ 5 5-10-401, 39 -13-213(a)(2),
       39-13-106, 39-13-218 or 55-10-418 setting forth the time and place of each
       prior conviction or convictions. When the state uses a conviction for the
       offense of driving under the influence of an intoxicant, aggravated vehicular
       homicide, vehicular hom icide, veh icular a ssau lt or adu lt driving w hile
       impaired committed in another state for the purpose of enhancing the
       punishment for a violation of § 55-10 -401, the indictm ent or chargin g
       instrument must allege the time, place and state of such prior conviction.

Tenn . Code Ann. § 5 5-10-40 3(g)(2) (19 98).

       Count one of the indictment in this case alleges:

      That BOBBY J. YOUNG . . . on or about the 19th d ay of Ju ly, 1996 , . . . in
      the County of Dickson, . . . did unlawfully drive or was in physical control
      of an automobile on a public highway or road of the State of Tennessee,
      or on a st reet or alley, or w hile on the pr emise s of a shopping center, trailer
      park or apartme nt complex, or a ny other prem ises w hich is g enera lly
      frequented by the public at large, while he . . . was under the influence of
      an intoxicant . . . in violation of T.C.A. 55-10-401 . . . And prior to the
      commission of said offense . . . BOBBY J. YOUNG had previously been
      convicted of like offens es in the fo llowing ca ses, . . .
              1.     On July 29, 1991 in the General Sessions Court for
                     Montgomery County, Clarksville, TN in case number
                     A442 23295 9212 o f said cou rt.
              2.     On May 9, 1995 in the Ge neral Se ssions C ourt for
                     Montgom ery County, Clarksville, TN in case number
                     A174 28604 1514 o f said cou rt.
              3.     On July 11, 1995 in the General Sessions Court for
                     Montgom ery County, Clarksville, TN in case number
                     A140 29094 5217 o f said cou rt.
      Wh erefore the Grand Jurors afores aid . . . do indict BOBBY J. YOUNG for
      the 4th offense of unlawfully driving said automobile upon said pub lic
      highwa y while un der the influ ence [o f an intoxica nt] . . . .
In addition, count two of the indictment alleges

                                          -4-
      [T]hat in the County and State aforesaid and on the date afor esaid . . .
      BOBBY J. YOUNG . . . did unlawfully and willfully drive a motor vehicle .
      . . at a time w hen the privilege . . . so to do was canceled, suspended, or
      revoked, becau se of a convic tion for D riving w hile Into xicated , in violation
      of T.C.A . 55-50-5 04 . . . And . . . prior to the commission of said offense .
      . . BOBBY J. YOUN G had previously been convicted of like offense in the
      following c ase . . .
              1.     On July 29 , 1991 in the General Sessions Court for
                     Montgom ery County, Clarksville, TN in case number
                     A442 23295 9213 o f said cou rt.
      Wh erefore the Grand Jurors aforesaid . . . do indict BOBBY J. YOUNG for
      the offense of driving on a canceled, su spen ded, o r revok ed lice nse, in
      violation of T .C.A. 55 -50-504 , a Class A Misde mean or . . . .

Appellant contends that counts one and two of the indictm ent fail to comp ly with

the requirements of section 55-10-403(g)(2) and fail to comply with constitutional

notice requirements because they identify the prior convictions as being for “like

offense(s)” rather than identifying the prior convictions as being for DUI or DORL.



      Initially, we note that sectio n 55-10 -403(g)( 2) has n o applica tion to

indictme nts alleging th at a defendant has committed a second offense DORL.

In addition, section 55-10-403(g)(2) is directory in nature, and the real question

is whether the indictment is sufficient to satisfy constitutional notice requirements.

See State v. Ran dy Ch appe ll, No. 02C01-9204-CC-00084, 1992 WL 368636, at

*1 (Tenn. C rim. App., Jack son, Dec. 16 , 1992).



      The Tennessee Supreme Cour t has s tated th at “an in dictm ent is va lid if it

provides sufficient info rmation (1) to ena ble the ac cused to know the accusation

to which answ er is required, (2) to furnish the court adequ ate basis for the en try

of a proper ju dgme nt, and (3 ) to protect th e accu sed from double jeopard y.”

State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted). Further, “an

indictment need n ot confor m to trad itionally strict plea ding req uireme nts.” Id.

“Thus, we now approach ‘attacks upon indictments, especially of this kind, from

                                          -5-
the broad and enlightened standpoint of common sense and right reason rather

than from the narrow standpoint of petty preciosity, pettifogging, technicality or

hair splitting fault finding.’” Id. (quoting Unite d State s v. Pur vis, 580 F.2d 853,

857 (5th Cir.1978 )).



        A “common sense” reading of counts one and two of the indictment

indicates that they were sufficient to comply with the constitutional notice

requirem ents recited in Hill.            Count one of the indictment clearly informed

Appellant that he was being charged with fourth offense DUI. Count one also

informed Appellant of the three prior convictions that were the basis for

enhancing the DUI charge in this ca se to a charg e of fou rth offen se DU I. It is

clear that when the term “like offens es” is vie wed in conte xt, it is obvio usly

referring to prior convictions for the same offense that Appellant was charged

with in this case—DUI. Likewise, count two of the in dictment clearly informed

Appellant that he w as being charge d with second offense DORL.1 Count two also

informed Appellant of the prior conviction that was the basis for enhancing the

DORL charge in this case to a charge of second offense DORL. It is clear that

when the term “like offe nse” is viewed in con text, it is obviously referring to a prior

conviction for the s ame offens e that A ppella nt was charg ed with in this

case—DORL. Although co unts one an d two could ha ve been m ore precise, they

clearly enabled Appellant to know the accusation to which answer was required,

furnished the court with an adequate basis for the entry of a proper judgment,

and protecte d Appe llant from d ouble jeo pardy. W e decline Appellant’s invitation

to view the indictment from “the standpoint of petty preciosity, pettifogging,


        1
         Count two charges A ppellant with Class A misdem eanor DO RL. The first conviction for D ORL is a
Class B misdemeanor while a second or subsequent conviction for DORL is a Class A misdemeanor. Tenn.
Code Ann. § 55-50-504(a) (19 95).

                                                    -6-
technica lity or hair splitting fa ult finding,” and conclude that the indictment was

sufficient to comply with constitutional notice requirements. This issue has no

merit.



                 III. REQUEST FOR A BREATH ANALYSIS TEST




         Appellant contends that it is unconstitutional to ask an accu sed to subm it

to a breath analysis te st becau se it forces a defen dant to either testify at trial and

explain the failure to subm it to the test o r refuse to testify and have the refusal

considered as evidence of guilt. However, Appellant has clearly waived this issue

by failing to supp ort it with any cita tion to the re cord an d by failing to cite to any

authority. Tenn. R. Ct. Crim. App. 10(b). Moreover, the Tennessee Supreme

Court has he ld that requ iring an ac cused to either submit to a blood-alcohol test

or have his refusal used against him at trial does not violate either the federal or

state constitution s. State v. Frasier, 914 S.W .2d 46 7, 470 –73 (T enn. 1 996). T his

issue ha s no m erit.



                             IV. OPINION TESTIMONY




         Appellant contends that the trial court erred when it allowed a police officer

to give his opinion about Appellant’s level of intoxication at th e time of a rrest.

Howeve r, as previously mentioned, the record does not contain a trial transcript

nor does it cont ain a p roper ly filed sta teme nt of the eviden ce. Th us, it is not

possible for us to re view this issue. It is the d uty of the pa rty seeking appellate

review to prepare a rec ord which co nveys a fa ir, accurate and complete account

of what transpired with respe ct to the issu es raised by the pa rty. State v. Ballard,

                                           -7-
855 S.W .2d 557, 560 –61 (Ten n. 1993); State v. R oberts, 755 S.W.2d 833, 836

(Tenn. Crim. A pp. 198 8). Wh en the record is incom plete, a nd do es no t conta in

a transcript of the proceedings relevant to an issue presen ted for r eview , this

Court is preclud ed from conside ring the iss ue. State v. Matthews, 805 S.W.2d

776, 784 (Tenn. Crim. App. 1990). Therefore, this issue is waived.



                         V. INSTR UCTIO N ON REFU SAL




       Appellant contends tha t the trial court erred when it instructed the jury that

Appe llant’s refusal to submit to a breath analysis test could be considered against

him.



       The re cord indic ates that th e trial court ins tructed the jury that:

             In this case , the defen dant wa s reque sted to tak e a test to
       determ ine his blood alcoh ol con tent. T he de fenda nt refus ed to ta ke this
       test.
             A defen dant ca nnot be forced to ta ke a bloo d/alcoho l test.

             When it is the sole decision of a defendant to take such a test and
       he refuses to do so, the jury may infer that the results would have been
       unfavorable to him.

             Such refusal does not relieve the State of any duty to establish
       any fact necessary to constitute a violation of law.

             Whether there was such a refusal and whether such inference
       has arise n is for you to decide.

       Appellant con tends that the trial court erre d when it gave the above

instruction because giving the instruction placed too much emphasis on the fact




                                           -8-
that he refu sed to tak e a brea th analysis test. 2 However, this Court has

previously rejected this same argument and held that when there is evidence

that a defendant has refused to submit to a blood alcohol test after being

advised of the consequences of a refusal, the trial court should instruct the

jury that it ma y conside r the refusa l as proba tive of guilt. See State v. Malc olm

Flake, No. 13, 1986 WL 2866, at *3 (Tenn. Crim. App., Jackson, March 5,

1986). 3 This issu e has n o merit.



                       VI. SUFFICIENCY OF THE EVIDENCE




       Appe llant co ntend s that th e evide nce w as insu fficient to supp ort his

convictions for DU I, DORL, a nd violating the ope n container law . However,

Appe llant ha s failed to sup port his one s enten ce co nclus ory arg ume nt for this

issue with an y citation to the re cord o r with an y citation to auth ority. Th us, this

issue is waived. T enn. R. Ct. C rim. App. 10(b ). Moreover, bec ause the rec ord

does not contain a trial transcript or a properly filed statement of the evidence,

we are precluded from reviewing this issue. It is the duty of the party seeking

appellate review to prepare a record which conveys a fair, accurate and

complete account of what transpired with respect to the issues raised by the

party. Ballard, 855 S.W .2d at 560 –61; Robe rts, 755 S.W.2d at 836. When



       2
         Appellant also contends that the trial court erred when it gave this instruction
because the trial court failed to inform the jury that it could choose to place no emphasis on
the refusal. This contention is inaccurate. The express language of the instruction informed
the jury that whether the refusal has any meaning is for the jury to decide.
       3
        Appellant concedes that the State introduced evidence that he refused to take a breath
analysis test and that this evidence was admissible. The record also indicates that the State
introduced evidence that showed that before Appellant was asked to submit to a test, he was
advised of the consequences of a refusal.

                                              -9-
the record is incomplete, and does not contain a transcript of the proceedings

relevant to an issue presented for review, this Court is precluded from

conside ring the iss ue. Matthews, 805 S .W .2d at 7 84. Th erefor e, this iss ue is

waived.



                  VII. ADMISSION OF PRIOR CONVICTIONS




       Appellant contends that the evidence of his prior convictions was

improperly admitted. Specifically, Appellant argues that this evidence was

improp erly adm itted beca use it was not introdu ced thro ugh the testimon y of a

proper record s custodian a nd was no t properly authen ticated. Howe ver,

because the record does not contain a trial transcript or a properly filed

statem ent of th e evide nce, w e are p reclud ed from review ing this issue. It is

the duty of the party seeking appellate review to prepare a record which

conveys a fair, accurate and complete account of what transpired with respect

to the issu es raised by the pa rty. Ballard, 855 S.W .2d at 560 –61; Robe rts,

755 S.W.2d at 836. When the record is incomplete, and does not contain a

transc ript of the proce eding s releva nt to an issue p resen ted for r eview , this

Court is p reclude d from c onside ring the iss ue. Matthews, 805 S.W .2d at 784 .

Therefore, this issue is waived.



              VIII. VALIDITY OF THE PRIOR DUI CONVICTIONS




                                          -10-
       Appellant contends that his conviction for DUI should not have been

enhanced to fourth offense DUI because the three prior judgments of

conviction upon which enhancement was based are void on their face.



       First, Appellant contends that the judgments from general sessions

court that indicate that he pled guilty to three prior DUI offenses are void on

their face because there is no indication that they are judgments, because

they do not na me Ap pellant as the pe rson convicted , and becau se they have

not be en pro perly sig ned b y a judg e. Des pite Ap pellan t’s asse rtions, it is

obvious from the face of the docum ents that th ey are jud gmen ts of convic tion.

In addition, each judgment states that “Bobby J. Young” or “Bobby Joe Young”

has been convicted of a DUI offense, each judgment indicates what sentence

was impo sed, and ea ch judgm ent has bee n signed by a judge. Further,

nothing indicates that the court that pronounced the judgments was without

jurisdiction to do so.



       Second, Appellant contends that the judgments are void on their face

because the warrant section of each judgment is defective. However, each

judgment indicates that Appellant entered a guilty plea while he was

represented by counsel. As this Court has previously stated, “[t]he general

rule is that a plea of guilty waives all non-jurisdictional defects, procedural

defects, and c onstitutional infirmities.” State v. Gross, 673 S.W.2d 552, 553

(Tenn. Crim. App. 1984). Thus, Appellant waived his challenge to the alleged

defects o f the warra nts by plea ding gu ilty. See id. at 554.




                                          -11-
       Third, Appellant contends that the judgments are void on their face

because they fail to show: (1) that he was advised of his privilege against

self-incrimination, his right to co nfront witnesses , and his right to a trial by jury

as required b y Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969); (2) that he was advised pursuant to State v. Mackey, 553 S.W.2d

337 (Tenn. 1977), that a guilty plea could be used to enhance the sentence for

future convictions; and (3) that the trial court followed certain procedural

requirements such as ensuring that there was a factual basis for the plea and

creating a verbatim record of the plea hearing. However, this Court has

recently h eld that, eve n if true, non e of these allegation s would establish that a

judgm ent was void on its fac e. State v. Phillip Todd Swords, No. 03C01-9807-

CR-00239, 1999 WL 222702, at *6–7 (Tenn. Crim. App., Knoxville, April 14,

1999 ). Beca use th ese a llegatio ns do not es tablish that the judgm ents a re void

on their face, the allegations cannot be used in this case to collaterally attack

Appe llant’s prior co nvictions in order to p revent the m from being us ed to

enhan ce his co nviction to fo urth offen se DU I. See id., 1999 WL 222702, at

*6–7. The Post-Conviction Procedure Act is the authorized route of attack for

Appe llant.   See id., 1999 W L 2227 02, at *7. T his issue has no merit.



  IX. FAILURE TO GIVE A SPECIFIC JURY INSTRUCTION ON IDENTITY




       Appe llant co ntend s that th e trial co urt erre d whe n it failed to spe cifically

instruct the jury that in order to establish that Appellant had previously been

convicted of DUI offenses, the State had the burden to prove beyond a

reaso nable doub t that Ap pellan t was th e sam e individ ual wh o was nam ed in


                                            -12-
the three prior judgm ents of co nviction. H oweve r, Appella nt has faile d to

support his argument for this issue with any citation to the record or with any

citation to au thority. Thu s, this issue is waived. T enn. R . Ct. Crim . App. 10 (b).




        Notwiths tanding waiver, we conclud e that Ap pellant is no t entitled to

relief even on the merits. The record indicates that during the initial phase of

trial, the trial cou rt instructed the jury that:

               [T]he defen dant h as no obliga tion to p resen t any ev idenc e at all,
        or to prove to you in an y way that h e is innoc ent. It is up to th e State to
        prove tha t he is guilty, an d this burd en stays on the S tate from start to
        finish. You m ust find the defend ant not gu ilty unless the State
        convinces yo u beyond a reasonab le doubt that he is g uilty.
               The State must prove every element of the crimes charged
        beyond a reaso nable d oubt. . . . .
                      ....
               The State must prove beyond a reasonable doubt all of the
        elements of the crime charged, that the crime, if in fact committed, was
        comm itted by this de fendan t . . . .

The re cord also indicates that after the State intro duced the three judgm ents

of conviction during the second phase of trial, the trial court instructed the jury

that:

               You w ill consid er whe ther or not the defen dant h as pre viously
        been convicted of the offense of driving under the influence of an
        intoxica nt and , if so, wh ether y our pre vious ve rdict in th is case was h is
        second offense or whether it was his third or subsequent offense. In so
        doing, you will use the principles explained to you in the previous
        charge.
                      ....
               If from all of the evidence and the court’s charge you find that no
        prior offens e has b een pro ved or if you have rea sonab le doub t as to
        wheth er any offens e has been prove d, you w ill find tha t the de fenda nt is
        guilty on his first offense o f DUI.

        In this case, the trial court clearly informed the jury that the State had

the burden of proving every element of the charged crimes beyond a



                                            -13-
reasonable doubt. Thus, the jury was clearly aware that in order to prove that

Appellant had prior convictions for DUI, the State had to establish beyond a

reasonable doubt that Appellant was the person who was named in the prior

judgm ents of co nviction. T his issue has no merit.



                  X. USE OF THE PRESENTENCE REPORT




      Appellant contends that the trial court erred when it considered

conviction s listed in the presen tence re port whe n it senten ced Ap pellant.



      First, Appellant argu es that the prese ntence repo rt should not have

been admitted into evidence because there was no proof that the report was

accurate and because Appellant’s counsel was prevented from questioning

the probation o fficer who prepa red the report ab out its accuracy. H owever,

the record indicates that when the State offered the presentence report for

admission into evidence, Ap pellant mad e no objection whatsoeve r. Further,

the reco rd indicate s that Ap pellant’s co unsel w as given the opp ortunity to

cross -exam ine the proba tion offic er and coun sel ne ver ask ed a s ingle

question that challenged the accuracy of the report. By failing to object to the

introduction of the presentence report, Appellant clearly waived any challenge

to its introduc tion or to its ac curacy. See Tenn. R . App. P. 36(a).



      Second, Appellant contends that the presentence report should not

have been considered by the trial court because it listed offenses that

Appellant was charged with that did not result in convictions and included


                                         -14-
convic tions th at were over te n year s old. H owev er, the tr ial cou rt expre ssly

stated that it would not consider any charged offense that did not result in a

conviction and w ould not cons ider any conviction tha t was more than ten years

old. This is sue ha s no m erit.



                          XI. LENGTH OF SENTENCES




       Appellant con tends that the trial court erro neously imp osed exce ssive

sentences for all three of his convictions.



       This Court’s review of the sentence imposed by the trial court is de

novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1997). This presumption is conditioned upon an affirmative showing in the

record that the trial judge considered the sentencing principles and all relevant

facts and circums tances . State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).

The burd en is upon the appealing pa rty to show that the se ntence is imp roper.

Tenn. Code Ann. § 40-35-401(d) (1997) (Sentencing Commission

Comments). Ordinarily, a trial court is required to make specific findings on

the reco rd with reg ard to se ntencing determ inations. See Tenn. Code Ann. §§

40-35- 2 09(c), 40 -35-210 (f) (1997 & Supp. 1 998). Ho wever, w ith regard to

misdemeanor sentencing, the Tennessee Supreme Court has stated that

review of misdemeanor sentencing is de novo with a presumption of

correctness even if the trial court did not make specific findings of fact on the

record because “a trial court need only consider the principles of sentencing

and enha nceme nt and mitigating fa ctors in order to com ply with the legislative


                                          -15-
manda tes of the misde meano r sentencing s tatute.” State v. Troutman, 979

S.W .2d 271, 274 (Tenn. 199 8).



       Misdemeanor sentencing is controlled by Tennessee Code Annotated

sectio n 40-3 5-302 , which provid es tha t the trial c ourt sh all imp ose a spec ific

sentence consistent with the purposes and principles of the 1989 Criminal

Senten cing Re form A ct. See State v. Palmer, 902 S.W.2d 391, 392 (Tenn.

1995). A defendant convicted of a misdemeanor, unlike a defendant

convicted of a felony, is n ot entitled to a presum ption of a m inimum senten ce.

State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). 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

senten cing act. Palmer, 902 S.W.2d at 393.



       In this case, Appellant was convicted of fourth offense DUI, which was a

Class A misde mean or at the tim e of the offe nse. See Tenn . Code Ann. §

55-10-4 03(m) (1995). U nder the applicab le statute in e ffect at the tim e, a

defendant convicted of fourth offense DUI was to be confined “for not less

than one hundred twenty (120) days nor more than eleven (11) months and

twenty-nin e (29) da ys.” Ten n. Cod e Ann. § 55-10-4 03(a)(1) (1995).

Furtherm ore, “all pers ons se ntence d unde r subse ction (a) sh all, in addition to

the service of at least the minimum sentence, be required to serve the

difference between the time actually served and the maximum sentence on

probatio n.” Ten n. Cod e Ann. § 55-10-4 03(c) (19 95). In effec t, the DU I statute



                                           -16-
mandates a maximum sentence for a DUI conviction with the only function of

the trial court being to determine what period above the minimum period of

incarcer ation esta blished b y statute, if an y, is to be se rved in co nfinem ent.

See Troutman, 979 S.W.2d at 273. Appellant was also convicted of second

offense DOR L, which is a Class A misd emea nor. See Tenn. Code Ann. § 55-

50-504(a)(2) (1995). A defendant convicted of second offense DORL “shall be

punished by confinement for not less than forty-five (45) days nor more than

one (1) year.” Tenn Code Ann. § 55-50-504(a)(2) (1995). Further, Appellant

was also convicted of violating the open container law, which is a Class C

misde mean or punish able by fine only. See Tenn. Code Ann. § 55-10-

416(b)(1) (199 5).



       In determining the length of Appellant’s sentences, the trial court found

that Appellant should receive the maximum sentence for each conviction. The

trial court based its decision to impose maximum sentences on its finding that

Appellant had previously committed an alcohol related offense while he was

on probation for similar offenses a nd becau se Appe llant’s criminal record

consisted of three prior DUI convictions, three prior DORL convictions, thirteen

prior public intoxication convictions, and one prior disorderly conduct

conviction.



       The record amply supports the trial court’s findings in support of the

imposition of maximum sentences. The record indicates that Appellant

committed the offense of public intoxication while he was on probation for DUI

and DORL. More importantly, our reading of Appellant’s criminal record for



                                          -17-
the ten years prior to the offenses in this case indicates that Appellant has

three p rior DU I convic tions, th ree prio r DO RL co nviction s, eigh t prior pu blic

intoxication convictions, one prior disorderly conduct conviction, and two prior

traffic offense convictions. 4 Unde r these circ umsta nces, w e conc lude that,

upon de novo review in ob servanc e of the les s stringen t standar ds attach ed to

misd eme anor s enten cing, th e trial co urt did n ot abu se its dis cretion when it

imposed maximum sentences for Appellant’s convictions for fourth offense

DUI and second offense DORL.



       Although not specifically challenged by Appellant, we conclude that the

portion o f his sente nce for the open c ontaine r violation tha t impose s thirty

days of confinement must be vacated. As previously noted, violating the open

containe r law is a C lass C m isdem eanor w hich is pu nishab le by fine on ly. See

Tenn. C ode Ann . § 55-10-416 (b)(1) (1995). Th us, the impos ition of thirty days

of confinement for the open container violation was clearly improper and that

portion of the sentence must be vacated.5



                           XII. CONSECUTIVE SENTENCING




       4
         We note that Appellant’s criminal record for the ten years prior to the offenses in
this case indicates that Appellant has six additional public intoxication convictions and a
conviction for contributing to the delinquency of a child. However, because the record is not
entirely clear about these convictions, we have given Appellant the benefit of the doubt and
do not consider them.
       5
           We do not vacate the portion of this sentence that imposes a fine.

                                               -18-
       Appe llant co ntend s that th e trial co urt erre d whe n it orde red his

sentences for fourth offense DUI and second offense DORL to run

consecu tively.



       Consecutive sentencing is governed by Tennessee Code Annotated

section 40-35 -115. The trial cou rt has the discretion to o rder consec utive

senten cing if it finds tha t one or m ore of the required statutory crite ria exist.

State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further, when

imposing consecutive sentencing based on a finding that a defendant is a

“dangerous offender”, the court is required to determine whether the

consecutive sentences (1) are reasonably related to the severity of the

offenses committed; (2) serve to protect the public from further criminal

conduct by the offender; and (3) are congruent with general principles of

senten cing. State v. Lane, ____ S .W.2 d ____ (Tenn . 1999); State v.

Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



       In imposing consecutive sentences, the trial court made no express

finding as to which factors under T enn. Cod e Ann. Se ction 40-35-11 5’s factors

applied. How ever, it is clear that the trial court impo sed conse cutive

sentencing because it found that Appellant was a dangerous offender whose

behavior indicates little or no regard for human life and who has no hesitation

in com mitting a c rime in w hich the ris k to hum an life is high . See Tenn. Code

Ann. § 40-35-115(4) (1997). We agree that Appellant is a dangerous offender

for who m co nsec utive se ntenc ing is ap propr iate. Ap pellan t has re peate dly

endan gered th e lives of oth er moto rists by com mitting the offense o f DUI.



                                           -19-
Indeed, this Court has previously held that a defendant with multiple DUI

convictions “may be properly classified as a ‘dangerous offender’ for whom

consecu tive sentencing is ap propriate.” State v. Carl E. Campen, No. 01C01-

9512-C C-004 33, 199 7 W L 6617 28, at *4 (T enn. C rim. App ., Nashville, O ct.

24, 1997). Fu rther, we conclud e in our de novo review that the Wilkerson test

is satisfied. First, consecutive sentencing is appropriate to the seriousness of

the offens es. Certa inly, both D UI and DOR L are se rious offen ses. See Carl

E. Campen, 1997 W L 661728 , at *4. Second, it is clear that co nsecutive

senten cing is ne cessar y to protec t society from Appella nt’s crimin al condu ct.

Appe llant ha s con tinued to com mit the offens e of DU I, even th ough his drive r’s

licens e has been revoke d or su spen ded o n three differen t occa sions . It is

clear that the prior lenient punishments that have been imposed on Appellant

have done absolutely nothing to deter his continued violation of the DUI and

DOR L laws . Third , we co nclud e that c onse cutive s enten cing in this cas e is

entirely congruent with general principles of sentencing. This issue has no

merit.



                                 XIII. CONCLUSION




         Because the trial court improperly imposed thirty days of confinement

for the o pen c ontain er con viction, w e vaca te that p ortion o f Appe llant’s

sentence. In all other respects, the judgment of the trial court is affirmed.




                                    ____________________________________

                                           -20-
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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