            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                              Assigned on Briefs October 6, 2009

                   STATE OF TENNESSEE v. CEDRIC JOHNSON

                 Direct Appeal from the Criminal Court for Shelby County
                         No. 06-08041    John Fowlkes, Jr., Judge


                No. W2008-02239-CCA-R3-CD - Filed February 26, 2010


The Defendant-Appellant, Cedric Johnson, was convicted by a Shelby County jury of one
count of reckless endangerment, a Class A misdemeanor, and was sentenced to eleven
months and twenty-nine days of confinement at the county workhouse, with six months of
the sentence to be suspended. On appeal, Johnson argues that the trial court erred in failing
to set a minimum service percentage for his sentence. Upon review, we affirm the judgment
of the trial court and remand for entry of a corrected judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                 and Remanded for Entry of Corrected Judgment

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
D. K ELLY T HOMAS, J R., JJ., joined.

Jeff Woods, Memphis, Tennessee, for the Defendant-Appellant, Cedric Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Rachel Newton, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                                OPINION

      Background.1 The victim, Paul Glover, received several threatening messages from
Johnson, his nephew, regarding some money. Shortly thereafter, on June 18, 2006, Johnson
knocked on the victim’s door while he held a gun behind his back. When the victim finally


        1
         Johnson did not include the trial transcript in the record on appeal. It is the duty of the appellant
to provide a record which conveys a fair, accurate, and complete account of what transpired with regard to
the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor, 992 S.W.2d 941,
944 (Tenn. 1999). We, therefore, glean these facts from the sentencing hearing, pre-sentence report, and the
technical record.
opened the door, Johnson shot him in the face, which placed the victim in critical condition.
Johnson denied shooting the victim and said that he went over to the victim’s house to pick
up a paycheck for some work he had done. He stated that he rang the victim’s doorbell, and
the victim began shooting inside his house. Johnson claimed that the victim shot himself
when one of the bullets from the victim’s gun ricocheted and hit the victim in the face.
Johnson was subsequently indicted for criminal attempt first degree murder; however, the
jury convicted Johnson of the lesser included offense of reckless endangerment. Following
the September 17, 2008 sentencing hearing, during which Johnson and several of his family
members testified, the trial court imposed a sentence of eleven months and twenty-nine days
of confinement in the county workhouse, with six months of the sentence to be suspended.
The court also ordered $2500 in restitution. Johnson filed a timely notice of appeal on
September 30, 2008.

                                        ANALYSIS

        Johnson argues that the trial court erred in failing to set a minimum service percentage
for his sentence. In response, the State contends that because neither the judgment nor the
sentencing transcript provides any information regarding the percentage of the sentence to
be served in confinement before being eligible for work release, furlough, trusty status, and
rehabilitative programs, the percentage is considered to be zero percent pursuant to
Tennessee Code Annotated section 40-35-302(d). We agree.

       The sentencing court is granted considerable latitude in misdemeanor sentencing.
See, e.g., State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999), perm. to appeal
denied (Tenn. March 13, 2000). A separate sentencing hearing is not mandatory in
misdemeanor cases; however, the court must provide the defendant with a reasonable
opportunity to be heard regarding the length and manner of the sentence. See T.C.A. §
40-35-302(a) (2006). Misdemeanor sentences must be specific and in accordance with the
principles, purpose, and goals of the Criminal Sentencing Reform Act of 1989. See id. §§
40-35-104, -302 (2006); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The
misdemeanor offender must be sentenced to an “authorized determinant sentence,” and “a
percentage of that sentence, which the offender must serve before becoming eligible for
consideration for rehabilitative programs, must be designated.” Palmer, 902 S.W.2d at 394.
Typically, a percentage not greater than 75 percent of the sentence should be fixed for a
misdemeanor offender. Id. at 392. A convicted misdemeanant, unlike a felon, has no
presumption of entitlement to a minimum sentence. State v. Baker, 966 S.W.2d 429, 434
(Tenn. Crim. App. 1997) (citing State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.
1994), perm. to appeal denied (Tenn. Sept. 19, 1994)). The misdemeanor sentencing statute
requires that the trial court consider the enhancement and mitigating factors as well as the
purposes and principles of sentencing when calculating the percentage of the sentence to be
served “in actual confinement” prior to “consideration for work release, furlough, trusty


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status and related rehabilitative programs.” T.C.A. § 40-35-302(d) (2006); see also State v.
Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).

       The judgment form in this case is blank regarding the percentage of the sentence
which Johnson must serve before being eligible for work release, furlough, trusty status, and
rehabilitative programs. See T.C.A. § 40-35-302(d) (2006). When the trial court fails to
designate a percentage of service for a misdemeanor sentence, the percentage shall be zero.
Id. However, the requirement does not apply when the transcript from the sentencing hearing
shows that the trial court intended a period of continuous confinement. State v. Russell, 10
S.W.3d 270, 278 (Tenn. Crim. App. 1999), perm. to appeal denied (Tenn. Oct. 4, 1999); see
also State v. Josh Moon, No. E2000-00690-CCA-R3-CD, 2001 WL 237348, at *3 (Tenn.
Crim. App, at Knoxville, Mar. 6, 2001).

        Here, the record does not indicate that the trial court intended a period of continuous
confinement. Therefore, we set the percentage of minimum service required before being
eligible for work release, furlough, trusty status, and rehabilitative programs at zero percent.
We take this opportunity to also note that no date of entry for the judgment and no statement
that Johnson received a jury verdict of guilty to the offense of reckless endangerment appears
on the judgment form. In addition, according to the sentencing hearing transcript, we note
that the trial court held that it was imposing a sentence of eleven months and twenty-nine
days of confinement in the county workhouse with six months suspended, rather than the five
months and twenty-nine days reflected on the judgment. Finally, we note that the amount
of restitution on the judgment form is listed as $2400 rather than $2500 as stated by the trial
court in the sentencing hearing transcript. “[W]hen there is a discrepancy between what is
reflected in the sentencing hearing transcript and what is on the judgment form, the transcript
controls.” State v. Adrian Porterfield, No. W2006-00169-CCA- R3-CD, 2007 WL 3005349,
at *13 (Tenn. Crim. App., at Jackson, Oct.15, 2007) (citing State v. Miranda Sexton, No.
E2006-01471- CCA-R3-CD, 2007 WL 596415, at *6 (Tenn. Crim. App., at Knoxville, Feb.
27, 2007); State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991), perm. to appeal
denied (Tenn. July 1, 1991)). Accordingly, we affirm the judgment of the trial court;
however, given the above inconsistencies, we also remand for entry of a corrected judgment
to set the percentage of minimum service at zero percent, to insert a date of entry for the
judgment, to insert a jury verdict of guilty to the offense of reckless endangerment, to amend
the period of incarceration to five months and twenty-nine days and the period of probation
to six months, and to change the amount of restitution from $2400 to $2500.

                                       CONCLUSION

       Upon review of the record, we affirm the trial court’s judgment and remand for entry
of a corrected judgment to set the percentage of minimum service at zero percent, to insert
a date of entry for the judgment, to insert a jury verdict of guilty to the offense of reckless
endangerment, to amend the period of incarceration to five months and twenty-nine days and

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the period of probation to six months, and to change the amount of restitution from $2400
to $2500.




                                                      ______________________________
                                                      CAMILLE R. McMULLEN, JUDGE




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