        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE

                             APRIL 1998 SESSION
                                                   FILED
                                                     August 7, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE ,                      §
          APPELLEE
                                    §
VS.                                      C.C.A. No. 01C01-9705-CC-00196
                                    §    Williamso n Coun ty
                                         Honora ble Henr y Denmar k Bell
CHARLENE HARDISON,                         §
         APPELLANT                       (SENTENCING)




FOR THE APPELLANT                        FOR THE APPELLEE

Lionel Barrett, Jr.                      John Knox Walkup
Washington Square Two - Suite 417        Attorney General and Reporter
222 Sec ond Av enue, No rth                    425 Fifth Avenu e, North
Nashville, TN 37201                      Nashville, TN 37243
  –––––
                                         Lisa A. Naylor
                                         Assistant Attorney General
                                         425 Fifth Avenu e, North
                                         Nashville, TN 378243


                                         Derek S mith
                                         Assistant District Attorney General
                                         P. O. Box 937
                                         Franklin, TN 37065-0937




OPINION FILED: _______________________


AFFIRMED AS MODIFIED

L. T. LAFFERTY, SPECIAL JUDGE
                                      OPINION

       The defendant, Charlene Hardison, appeals of right from a ruling of the

Williamson County Criminal Court in which the trial court imposed a sentence

of six (6) months confinement in the Williamson County Jail for the offense of

driving on a revoke d license. Also, the Williamso n County Criminal C ourt

consolidated an appeal of the defendant for violation of probation from the

Williamson County General Sessions Court. After a sentencing hearing, the

trial court upheld the judgment of the General Sessions Court and ordered the

defendant to serve six (6) months, less forty-five (45) days credit, as per her

plea of guilty, to run concurrently with the sentence for driving on a revoked

license. Af ter a review of the entire r ecord, brief s of the par ties and app licable

law, we affirm the trial court’s judgment as to the revocation of probation, but

remand the sentences as modified.

                                    Background

       The record reveals that the Williamson County Grand Jury, on July 8,

1996, indicted the defendant for driving on revoked license on March 30,

1996. On January 21, 1997, the defendant entered a plea of guilty to driving on

a revoked sentence b efore the W illiamson C ounty Crimin al Court w ith all

issues to be d etermined at a sentenc ing hearing . The defe ndant nor the State

submitted a transcript of guilty plea proceedings for driving on a revoked

license. The trial court set a sentencing hearing for March 17, 1997. Also, the

trial court consolidated an appeal in which the Williamson County General

Sessions revoked a period of probation granted to the defendant for the

convic tion of d riving u nder th e influe nce of alcoho l on Feb ruary 9, 19 94.

       As to the facts surroun ding the appeal of the General Sessions C ourt

revoking the defendant’s probation, the record establishes that on February 9,

1994, the defendant entered a negotiated reduced plea of guilty to driving under

the influence of alcohol as a first offender, from an orginial charge for a second
offense. The General Sessions Court imposed a fine of $1,000, six (6) months

confinement, at 75%, in the Williamson County jail, the defendant to serve

forty-five (45) days, given jail credit for eighteen (18) days treatment and serve

the balance of twenty-seven (27) days on weekends, and probation for eleven

(11) months, twenty-nine (29) days to expire February 9, 1995. On October 31,

1994, an amended probation order was entered incorporating the special

conditions of February 9th and adjustment of probation fees. The expiration

date was extended from February 9, 1995, to February 9th, 1996. On May 31,

1995, the General Sessions Court issued an arrest warrant for the defendant for

a violation of probation. The defendant was alleged to have not paid any

probation fees, nor completed the balance of her jail time on weekends. On

June 11, 1996, the General Sessions Court revoked the defendant’s probation

and she was ordered to serve the balance of her six (6) month sentence, less

credits. This ju dgment th e defend ant appea led to the W illiamson C ounty

Crimin al Cou rt.

         At the sentencing hearing, the trial court rejected the defendant’s request

for an alternative sentence, such as probation, and follow ed the State’s

recommendation that the defendant’s two six (6) month sentences run

concu rrent, less credit fo r forty-fiv e (45) d ays in the v iolation of pro bation.

The trial cou rt stated: “that’s f air, I approve -- I sentence h er in accord ance with

that.”

         From a re view of th is record, it is som ewhat dif ficult for this C ourt to

determine exactly what the trial court ruled as to the request for

probation/alternative sentences for the conviction of driving on a revoked

license. A re asonable in terpretation, fro m a review of the judg ment orde r, is

the trial court denied any alternative relief. Collaterally, what is the standard of

review for a criminal court when a defendant appeals the judgment of a general

sessions court revoking probation?
       In State v Cunningham No. 02C 01-9709 -CC-00 336, at Jack son, April

21, 1998, Judge Joe Riley, author, held that the standard of review for the

criminal court is de novo in appeals of revocation of probation by a general

session s court o r munic ipal cou rt. TCA 27-5-1 08 (c).

       Although the trial court did not conduct a de novo hearing in the appeal

of revocation of pro bation, the defendant in h er testimony admitted there were

grounds for the general sessions court to revoke her probation. We will now

move to th e questions of a prop er sentence for the def endant.

                            Sentencing Considerations

       When a defenda nt compla ins of his or h er sentence , we mus t conduct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 4-0-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d). This presumption,

however, is conditioned upon an affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and

circum stances . State v A shby, 823 S.W.2d 1 66 (Tenn 199 1).

       In arriving at a proper sen tence, the trial co urt must co nsider the sp ecific

proc edures o f Te nn. C ode Ann . § 40 -35- 210. (1) T he ev iden ce, if any,

received at trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the

nature and characteristics of the criminal conduct involved; (5) evidence and

information offered by the parties on enhancement and mitigating factors in §§

40-35-113 and 40-35-114; and (6) any statement the defendant wishes to make

in his or her own behalf about sentencing.

       In misdemeanor sentencing, a separate sentencing hearing is not

mandato ry, but the trial court is re quired to allo w the par ties a reasona ble

opportunity to be heard on the question of the length of the sentence and the

manner in which it is to be served. Tenn. Code Ann. § 40-35-302 (a). The
sentence must be specific and consistent with the purpose and principles of the

Crimin al Sente ncing R eform Act of 1989. T enn. C ode A nn. § 40 -35-30 2(b).

       The misdemeanant, unlike the felon, is not entitled to the presumption of

a minim um sen tence. State v D avis, No. 01C01-9202-CC-00062, Williamson

County (Tenn. Crim App. Filed March 17, 1193 at Nashville). In addition, the

trial court is required to fix the sentence at not greater than 75% so the

defendant may be considered for “work release, furlough, and related

rehabili tative pr ogram s.” Ten n. Cod e Ann . § 40-3 5-302 (d).

       In the case u nder review , the trial court did not design ate a percen tage in

the sentence for driving on a revoked license, but did in the appeal of the

violation of probation at 75%. Since the sentences were ordered to be served

concu rrently, we will assu me the percen tage of 75% applies to both senten ces.

                                Sentencing Hearing

       Since the trial court was somewhat limited in its ruling as to alternative

sentences, we will conduct a de novo review without a presumption of

correctness. Based on the evidence at the sentence hearing and the pre-

sentence report the defendant has had a rather disruptive life beginning in 1991,

primarily due to alcohol abuse. The pre-sentence report indicates the defendant

has severa l arrests for ass aults, public into xication an d maliciou s mischief, a ll

of which were retired or dismissed. The defendant admitted to being arrested

four (4) times for driving u nder the influence of alcohol; (1) convicted for D UI,

September 9, 1992; (2) convicted for DUI, February 9, 1994 (this case) (3) an

arrest for DUI January 29, 1992 reduced to reckless driving and (4) a pending

DUI and driving on revoked license offenses pending for a sentencing hearing

in the Prob ate Court o f Davids on Cou nty, March 3 1, 1997. A pparently, wh ile

on proba tion from th e convictio n of driving under the in fluence o f alcohol in

February, 1994, the defendant committed the offense of driving on a revoked

license on March 31, 1996, leading to her conviction. Unfortunately, the
defendant was arrested May 17, 1996, in Davidson County for driving under

the influen ce of alcoh ol.

       As to the revocation of probation, the defendant admitted that she failed

to comple te her wee kend days a s ordered b y the court. She failed to com plete

this confinement period due to being scared about being confronted with the

possibility of homosexual threats. Th e defendant adm itted she failed to report

to her prob ation office r as directed, b ut was un aware sh e had to rep ort in

person .

       To resolve her problem with alcohol, the pre-sentence report reveals the

defendant entered an alcohol treatment program in 1994 at Cumberland

Heights in Nashville. Also, the defendant since her arrest in May, 1996, re-

entered , in Sept embe r, 1996 , an alco hol treat ment a t Cum berland Heigh ts.

Apparently, this treatment center did not recommend in-patient treatment by

them, but suggested extensive out-patient treatment. Whereupon, the defendant

entered a program sponsored by Tennessee Christian Center. The defendant

was in an in-patien t program for f ourteen ( 14) d ays. A s par t of h er recovery,

the defendant attends AA meetings on a regular basis, and has not consumed

any alcohol since June, 1996.

       The defendant accounts her turn-around on a conversation with an

inmate in the Williamson County jail. The inmate was incarcerated for killing

a person in an accident involving alcohol. According to the defendant this had

a profound aff ect on her, she must co ntrol this problem or she w ould hurt

herself or others. The def endant’s boyfriend, Dav id Moneypacke r,

corroborated the defendant’s testimony about her not drinking since June, 1996

and her endeavors to face her alcohol problems.

       The defendant would urge this Court that some conditions, in its de novo

review, would satisfy probation. The State counters that the defendant is not

entitled to any consideration of probation. The power to suspend a sentence
and im position of a sen tence is w ithin the sole disc retion o f the trial court.

Stiller v S tate, S. W.2d 617 (Tenn. 1974). Probation is a privilege to be

conferred after a determination of the circumstances of the offense, the

defendant’s criminal reco rd, his social history, his present condition, and wh ere

approp riate, his m ental an d physica l conditi on. Id. This criteria must, also, be

consid ered w ithin the require ments o f the Se ntencin g Act o f 1989 .

       After a careful review of the evidence in this cause, we find the trial

court was correct in finding the defendant violated her conditions of probation

imposed by the William son Gen eral Session s Court. H oweve r, we wo uld

remand the causes to the Williamson Criminal Court for orders to be entered

reflecting that the defendant be confined for six (6) months for the offenses of

driving on a revoked license and driving under the influence of alcohol

(General Sessions judgment), payment of a fine $1,000, the defendant to serve

ninety (90) days, continuous confinement, less appropriate credits, and placed

on proba tion for e leve n (11 ) months , twe nty-nine (29) d ays co ncurren tly,

subjec ted to w hateve r condi tions the trial cou rt deem s reason able.




                                              ___________________________
                                              L. T. Lafferty, Special Judge

CON CUR :

__________________________
Gary R. Wade, Presiding Judge


__________________________
Thomas T. Woodall, Judge
