                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE
                                                    FILED
                                                    November 9, 1998

                                                 Cecil W. Crowson
                                         FOR PUBLICATION
                                               Appellate Court Clerk
                                         Filed:   November 9, 1998




STATE OF TENNESSEE,                 )
                                    )
       Appellant,                   )    Washington County
                                    )
v.                                  )    Hon. Arden L. Hill, Judge
                                    )
KENNETH EUGENE TROUTMAN,            )    No. 03S01-9705-CC-00049
                                    )
       Appellee.                    )




FOR APPELLANT:                           FOR APPELLEE:

John Knox Walkup                         Frederick M. Lance
Attorney General and Reporter            Johnson City

Michael E. Moore
Solicitor General

Gordon W. Smith
Associate Solicitor General
Nashville




                                OPINION



AFFIRMED                                                       HOLDER, J.
                                         OPINION



          While this case has ultimately been decided on a waiver issue, we granted this

appeal to take the opportunity to address two very important issues of statutory

construction in misdemeanor sentencing. The general issues may be framed as whether

Tenn. Code Ann. § 40-35-209 and Tenn. Code Ann. § 40- 35-210 apply to misdemeanor

sentencing. Specifically, the issues have been stated as: (1) whether a trial judge must

state on the record, pursuant to Tenn. Code Ann. § 40-35-210(f), what enhancement or

mitigating factors were employed in setting the sentence length in a DUI case; (2)

whether a trial court must make specific findings on the record, pursuant to Tenn. Code

Ann § 40-35-209(c), when fixing the percentage of a sentence to be served in

incarceration under the misdemeanor sentencing statute; and (3) whether the appellate

court erred in remanding this case for re-sentencing. We hold that §§ 40-35-209, - 210(f)

are inapplicable to DUI sentencing and that the defendant's sentences should be affirmed.



                                      BACKGROUND



          The defendant, Eugene Kenneth Troutman, was charged with driving while under

the influence of an intoxicant ("DUI") in case number 21092. While on bond and

awaiting trial in case number 21092, the defendant was again arrested and charged with

DUI in case number 21372. The defendant was convicted by a jury of DUI in case

number 21092 and pled guilty to DUI in case number 21372. He was sentenced to serve

eleven months and twenty-nine days in case number 21092 and two hundred and fifty

days in case number 21372. The sentences were ordered to run consecutively.



          The defendant had a separate sentencing hearing in which he presented several

witnesses. A presentence report was also filed and considered by the trial judge. The

record and the presentence report indicate that the defendant has the following criminal

record:

                                              2
       1. DUI on 09/11/78, 48 hours in jail;

       2. DUI on 02/01/79, 5 months 29 days sentence suspended;

       3. DUI/Refusal on 09/06/80, 1 year probation with 66 days in jail;

       4. DUI on 11/07/81, 3 days in jail;

       5. DUI, first, on 07/12/85, 15 days in jail;

       6. Felony Conviction on 11/30/88, 10 years probation;

       7. DUI on 12/28/88, 30 days jail;

       8. DUI on 01/12/90, 11 months 29 days probation with 48 hours in jail;

       9. Contributing to accident involving injury on 03/23/90 (apparently

       while license suspended or revoked);

       10. Violation of Restricted License Law on 08/28/90, 2 days in jail;

       11. DUI, second, on 08/28/90; 11 months 29 days with all suspended but

       45 days to be served in jail with 28 days credit for in-patient treatment at

       V.A.;

       12. Violation of probation 08/28/90, charge dismissed;

       13. Contributing to Accident Involving Property Damage on 12/2/93;

       14. No Drivers License on 01/28/93, no probation;

       15. DUI, third, and violation of Seatbelt Law on 08/15/94;

       16. DUI in August of 1994; and

       17. Declared habitual motor offender ("HMO") on 01/11/95; loss of

       driver's license for three years.



The trial judge cited the need for deterrence when sentencing the defendant to a total

period of incarceration of one year, two-hundred and forty-nine days.



       The Court of Criminal Appeals reversed the trial judge's sentence and remanded

the case to the trial court for a new sentencing hearing. The appellate court reasoned that:

(1) the trial court failed to make specific findings on the record pursuant to Tenn. Code



                                             3
Ann. §§ 40-35-209, -210; and (2) the appellate court could not conduct a meaningful

review due to the defendant's failure to include a trial transcript.



       Upon review of the record before us, we find that the defendant has been

convicted of ten (10) DUIs, one felony, and a handful of other charges within a sixteen-

year period. Accordingly, there is ample background information to support the trial

judge's sentences. Society demands protection from those who habitually drink and drive

in complete disregard for the welfare of others and for the laws of this state. Pursuant to

State v. Palmer, 902 S.W.2d 391 (Tenn. 1995), the sentence imposed by the trial judge in

this case should be affirmed. See id. (holding that trial judge could sentence the

defendant to serve the full eleven months and twenty-nine days for DUI conviction).1



                                         ANALYSIS



       The penalties for violations of our DUI laws are codified at Tenn. Code Ann. §

55-10-403. The defendant was convicted of third offense DUI. On the same day, the

defendant pled guilty to a subsequent DUI charge. Both third and subsequent DUI

convictions, at the time of the defendant's conviction, provided for a sentence of

confinement "not less than one hundred twenty (120) days nor more than eleven (11)

months and twenty-nine (29) days." Tenn. Code Ann. § 55-10-403(a)(1). The DUI

penalty statute further provided that:



       [a]ll persons sentenced under subsection(a) shall, 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 probation.




       1
         In State v. Connors , 924 S.W .2d 362 (Tenn. Crim . App. 1996), the appellate court
apparently concluded that the maximum percentage of confinement in a fourth offense DUI case
was 75 percent of the 11 months 29 days. This is contrary to prior Supreme Court precedent and
is overruled.

                                               4
Tenn. Code Ann. § 55-10-403(c). Accordingly, the length of a defendant's sentence for a

third or subsequent offense of DUI is set at eleven months and twenty-nine days. While

trial courts cannot deviate from the length of the DUI sentence, trial courts do retain some

discretion in determining what portion of the eleven month and twenty-nine day sentence

a defendant will serve in confinement.2



        Our initial focus is on whether a trial court in a DUI case must place on the record

either orally or in writing any enhancement or mitigating factors it found pursuant to

Tenn. Code Ann. § 40-35-210(f). Enhancement and mitigating factors are used primarily

to determine the length of a felony sentence within a statutory range. A sentence for

DUI, however, does not involve a range. A defendant convicted of DUI automatically

receives a sentence of eleven months and twenty-nine days.Accordingly, enhancement

and mitigating factors are not used in determining the length of a DUI

sentence.Tennessee Code Annotated § 40-35-210(f) is clearly inapplicable to DUI

sentencing.



        Our next inquiry is whether a trial court must make specific findings of fact on the

record when determining what portion of a DUI sentence will be served in confinement.A

DUI, at the time of the defendant's offense, was a Class A misdemeanor.Tenn. Code Ann.

§ 55-10-403(m).Accordingly, we must determine whether a trial judge must make

specific findings of fact in misdemeanor sentencing when determining what portion of a

defendant's sentence the defendant will serve in confinement.



        Misdemeanor sentencing guidelines are codified at Tenn. Code Ann. § 40-35-302

and provide in pertinent part:




        2
         A defendant must serve at least 120 days of the 11 month 29 day sentence for third and
subsequent DUI convictions. Whether the defendant shall serve in excess of the mandatory 120
days is within the trial judge's discretion.

                                               5
       In imposing a misdemeanor sentence, the court shall fix a percentage of
       the sentence which the defendant shall serve [in confinement]. . . .In
       determining the percentage of the sentence to be served in actual
       confinement the court shall consider the purposes of this chapter, the
       principles of sentencing, and the enhancement and mitigating factors set
       forth herein, and shall not impose such percentages arbitrarily.



Tenn. Code Ann. § 40-35-302(d).The Sentencing Commission Comments to § 40-35-

302(d) note that subsection (d), unlike felony sentencing, provides trial judges with

"needed flexibility in misdemeanor sentencing."See State v. Combs, 945 S.W.2d

770, 773-74 (Tenn. Crim. App. 1996) (noting flexibility); see also State v.

Williams, 914 S.W.2d 940, 948 (Tenn. Crim. App. 1995) (holding no presumption

regarding alternative form of sentence).



       The sentencing considerations generally used in determining the manner

of service for both misdemeanors and felony sentences are codified at Tenn.

Code Ann. §§ 40-35-102, -103.See Tenn. Code Ann. § 40-35-102 (noting

considerations used in determining whether confinement shall be

imposed);Tenn. Code Ann. § 40-35-103 (setting forth considerations to be used

when issuing sentencing of confinement).In 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.Compare Tenn. Code Ann. § 40-35-302 ("to

consider the purpose of this chapter, the principles of sentencing, and the

enhancement and mitigating factors set forth herein") with Tenn. Code Ann. §

40-35-210(f) (stating court shall place on record either orally or in writing what

enhancement or mitigating factors it found).



       The legislature has clearly indicated that trial courts must make specific

findings on the record in felony sentencing.See generally Tenn. Code Ann.



                                             6
§§ 40-35-209(c), 210(f).The language in these subsections is inconsistent with

the language employed in the misdemeanor sentencing statute.Moreover, the

legislature has indicated the ability to clearly mandate specific findings on the

record in felony sentencing.Had the legislature intended this practice in

misdemeanor sentencing, it could have so stated.Accordingly, while the better

practice is to make findings on the record when fixing a percentage of a

defendant's sentence to be served in incarceration, a trial court need only

consider the principles of sentencing and enhancement and mitigating factors in

order to comply with the legislative mandates of the misdemeanor sentencing

statute.3



         When imposing a percentage to be served pursuant to the misdemeanor

sentencing statute, Tenn. Code Ann. § 40-35-302 requires that a trial court "shall not

impose such percentages arbitrarily."Where, as in the case now before us, the defendant

fails to include all materials necessary for resolution of a misdemeanor sentencing issue,

the sentence shall be presumed to be correct.See Tenn. Code Ann. § 40-35-401 (1990)

(noting that defendant carries the burden of establishing impropriety of sentence); see

also Tenn. Code Ann. § 40-35-302 ("shall not impose such percentages arbitrarily").



         The defendant in the case now before us has failed to include the trial transcript.It

was the defendant's responsibility to include a complete record on appeal.See State v.

Ballard, 855 S.W.2d 557 (1993) (holding failure to include transcript precludes appellate

review); State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court's

ruling presumed correct in the absence of an adequate record on appeal).Notwithstanding

waiver, the record before us indicates that the defendant has a total of ten (10) DUI

convictions, a felony conviction, and other driving-related offenses.His tenth conviction



         3
         Cas es inc ons isten t with th is hold ing ar e ove rrule d to th e ext ent th ey con flict wit h this
opinion.See e.g., State v. Conners , 924 S.W .2d 362 ( Tenn . Crim. A pp. 1996 ); State v. Dockery,
917 S.W.2d 258 (Tenn. Crim. App. 1995); and State v. Coolidge, 915 S.W .2d 8 20 (T enn . Crim .
App. 1995).

                                                        7
stems from an arrest for DUI while on bond for the instant DUI offense.We find that the

following factors present in the record before us amply support the trial court's sentences:



        1.the defendant's lengthy criminal background, Tenn. Code Ann. § 40-35-

        103;

        2.the potential dangerousness of his convictions and his lack of hesitation

        to drive under the influence which involves a high risk to his life and

        others, Tenn. Code Ann. § 40-35-114(10);

        3.the defendant's inability to refrain from driving under the influence while

        on bond for a pending DUI charge;

        4.the defendant's previous unwillingness to comply with conditions of a

        sentence involving release into the community, Tenn. Code Ann. § 40-35-

        114(8);

        5.measures less restrictive than confinement have frequently been applied

        unsuccessfully to the defendant, Tenn. Code Ann. § 40-35-103(1)(C);

        6.the defendant's apparent dishonesty with the V.A. (factor relevant to

        ability to be rehabilitated), Tenn. Code Ann. § 40-35-103(6);4 and

        7.the need to protect society from chronic and habitual offenders of our

        DUI laws, see generally Tenn. Code Ann. §§ 40-35-102(1), (3), -

        103(1)(A).



Accordingly, the defendant's sentences are amply supported by the record.The defendant's

sentences are affirmed, and costs of this appeal shall be taxed to the defendant, Kenneth

Eugene Troutman, for which execution may issue if necessary.




        4
          The defendant has previously made failed attempts at rehabilitation which include 28
days in the V .A. for treatm ent following his eighth a rrest for D UI.

                                                8
                                 JANICE M. HOLDER, JUSTICE


Concurring:

Anderson, C.J.
Drowota, J.

Separate Concurring Opinion:

Birch, J


Reid, Sp.J., Not Participating




                                 9
                           IN THE SUPREME COURT OF TENNESSEE

                                            AT KNOXVILLE

                                   (HEARD AT JOHNSON CITY)




STATE OF TENNESSEE                              )     FOR PUBLICATION
                                                )
     Appellant                          )       FILED:
                                                )
v.                                              )     WASHINGTON COUNTY
                                                )
KENNETH EUGENE TROUTMAN                               )     HON. ARDEN L. HILL,
                                                )       JUDGE
     Appellee                           )
                                                )       NO. 03-S-01-9705-CC-00049




                               SEPARATE CONCURRING OPINION



                 The majority in this case holds that trial judges in misdemeanor cases are not required

to make specific findings of fact on the record regarding sentencing decisions. I write separately to

express my view that Tenn. Code Ann. § 40-35-209(c) (1990) applies equally to misdemeanor and

felony sentencing, thereby requiring specific findings of fact in both cases. Applying Tenn. Code

Ann. § 40-35-209(c) to the record before us, I agree with the majority that the sentence must be

affirmed because defendant has failed to provide a complete record for our review.



                 Tennessee Code Annotated § 40-35-209(c) is part of the Criminal Sentencing Reform

Act of 1989, Tenn. Code Ann. § 40-35-101 et seq. (1990). It provides, in relevant part, that “the

record of the sentencing hearing . . . shall include specific findings of fact upon which application

of the sentencing principles was based.” Although this section does not expressly distinguish
between felony and misdemeanor cases,5 the majority concludes that it is inapplicable in

misdemeanor cases because it is inconsistent with Tenn. Code Ann. § 40-35-302 (1990).



                  Section 302 governs misdemeanor sentencing and allows a trial court to decide

whether to conduct a separate sentencing hearing or to simply “allow the parties a reasonable

opportunity to be heard” on sentencing. Tenn. Code Ann. § 40-35-302(a). It also specifies how the

trial court should set forth the length and manner of service in a misdemeanor case. Tenn. Code

Ann. § 40-35-302(d).



                  The flexibility provided by section 302 is not disrupted by a requirement that the trial

court make specific findings of fact. Permitting the trial court to forgo placing findings of fact on

the record merely serves to frustrate the express legislative intent that the reasons for sentencing be

appropriately reviewable. See Tenn. Code Ann. § 40-35-209(c) sentencing commission comments.

Sentencing decisions are accompanied by a presumption of correctness, Tenn. Code Ann. §§ 40-35-

401(d), -402(d) (1990), which 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.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).                        Without findings of fact, the presumption is

meaningless and we have no choice but merely to review sentencing decisions de novo. Clearly, this

is not what the legislature intended.



                  A record without findings of fact may still permit meaningful appellate review even

though the presumption of correctness does not attach. In the case under submission, the defendant

failed to file a trial transcript.       Although some evidence relevant to sentencing is found in the



             5
               Where the General Assembly wanted to distinguish between felonies and
    misd eme anors, it ex pressly did s o. See, e.g., Tenn. Code Ann. § 40-35-205(a) (1990)
    (pre sen tenc e inve stiga tion g ene rally m and atory in felon y cas es bu t only dis cretio nary in
    misd eme anor ca ses).

                                                            2
sentencing hearing transcript and presentence report, scant--if any--evidence regarding the

circumstances of the offenses is included in this incomplete record. Ordinarily, such an incomplete

record would make me reluctant to conduct a review, lest such review be speculative. As the

majority points out, however, it is the defendant’s duty to provide a complete record, and where he

has failed to do so, he cannot now complain. Thus, I concur that the sentence should be affirmed.




                                                     ______________________________
                                                     ADOLPHO A. BIRCH, JR., Justice




                                                3
