         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                   Assigned on Briefs at Knoxville, October 30, 2001

      STATE OF TENNESSEE v. MARIO RICKY ORLANDO PRINTIS

                       Appeal from the Circuit Court for Obion County
                          No. 0-224    William B. Acree, Jr., Judge



                  No. W2000-03032-CCA-R3-CD - Filed February 27, 2002


Mario Ricky Orlando Printis appeals from his convictions of driving under the influence and evading
arrest. He questions the sufficiency of the evidence that he committed Class D felony evading arrest,
as opposed to the Class E form of that crime, and he complains that the trial court sentenced him too
harshly. Because we are unpersuaded, we affirm the convictions and sentences imposed. Due to an
omission from the DUI judgment form, however, we modify that judgment to correspond with the
lower court’s pronouncements at the sentencing hearing.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

David L. Hamblen, Union City, Tennessee (at trial), C. Michael Robbins, Memphis, Tennessee, and
Kevin McAlpin, Dresden, Tennessee (on appeal), for the Appellant, Mario Ricky Orlando Printis.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;
J. Scott McCluen, District Attorney General; and James Cannon, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                                         Procedural History

                The defendant was charged in a five-count indictment with two counts of driving
under the influence, Class D felony evading arrest, conspiracy to possess .5 gram or more of cocaine
with intent to deliver or sell, and possession of .5 gram or more of cocaine with intent to deliver or
sell. He pleaded guilty to one count of driving under the influence, and one count was dismissed.
He also pleaded guilty to evading arrest but left for the jury’s determination the question whether
he committed the Class E or Class D form of the offense. He had no sentencing arrangement
pursuant to his guilty pleas.
               The defendant was tried with two co-defendants. The jury acquitted the defendant
of the drug charges but returned a verdict of guilt of Class D evading arrest. The jury convicted one
of the two co-defendants of cocaine possession and acquitted him of conspiracy, and it acquitted the
other co-defendant of both possession and conspiracy. The trial court sentenced the defendant to
eleven months, 29 days, 100 percent of which was to be served in the county jail, for driving under
the influence. The court also imposed a Range I, four-year sentence for evading arrest, with the first
year to be served in the county jail and the remaining three years to be served in the Community
Corrections program. Following an unsuccessful motion for new trial, the defendant filed this
appeal.

                                                 Facts

                 In the light most favorable to the state, the evidence at trial demonstrated that on
March 13, 2000, Randy O’Dell of the Union City Police Department was on patrol when he noticed
a car weaving slightly and traveling at 30 miles above the speed limit. He stopped the vehicle and
talked to its driver, the defendant, who was nervous and shaking. Officer O’Dell smelled alcohol.
The defendant provided his driver’s license, but he did not comply with Officer O’Dell’s two
requests to step outside the car. When Officer O’Dell reached for the defendant’s car door, the
defendant fled in the vehicle. Officer O’Dell chased the defendant, and he estimated that the
pursuit reached speeds of approximately 60 miles per hour. A co-defendant, however, estimated
the top speeds at 70 to 75 miles per hour. Officer O’Dell engaged the blue lights and spotlights on
his vehicle, but the defendant did not stop. A sergeant from the police department eventually
instructed Officer O’Dell to discontinue the pursuit for safety reasons.

                 According to the defendant’s co-defendants, both co-defendants expressed their desire
to get out of the car during the chase. They were fearful for their safety, and one testified, “I thought
we was fixing to die.” The co-defendants were unable to get out of the car until the defendant ran
off the road into a ditch. They walked away from the scene, but the defendant stayed with his car
and was able to continue driving it.

                 A few minutes later, Officer Tack Simmons spotted the defendant’s vehicle after
having heard a description of it on his police radio. He followed the car at a high rate of speed, and
although he had his emergency equipment activated, the defendant did not stop. The defendant ran
a red light, driving around another vehicle that was stopped at the light. During the chase, Officer
Simmons observed other vehicles in the opposite lane of traffic. The defendant stopped after about
one mile. Officer Simmons testified that the defendant’s blood alcohol level was .12.

                Officers Moran and Duncan of the Union City Police Department responded to
instructions that they go to a certain location and look for two individuals on foot. They did so, and
they found the defendant’s two co-defendants. Officer Moran observed one of the two co-defendants
squatting down near a bridge, and he believed this individual was hiding something. The two
suspects were detained, and a search of the bridge area yielded 189.6 grams of cocaine base.



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                The defendant Printis presented no proof to rebut the state’s evidence. In their cases-
in-chief, both of the co-defendants attempted to shift culpability for the cocaine to Printis. One co-
defendant claimed that Printis had taken something from his pants pocket and thrown it out the
window of the car during the chase. The other co-defendant testified that although he did not see
whether the defendant threw something from the car during the chase because he was watching the
police car behind them, he did notice a plastic bag sticking out of the defendant’s right pants pocket
when Printis was in the process of providing his license to Officer O’Dell.

                The state presented rebuttal evidence that the co-defendant who disavowed having
seen Printis toss anything from the car had given a prior statement in which he claimed to have seen
the defendant throw a plastic bag out the car window during the chase.

               After the defendant was acquitted of the drug-related charges, the court conducted
a sentencing hearing for his DUI and evading arrest convictions.

                                     Sufficiency of the Evidence

                 Printis challenges the jury’s finding that he was guilty of Class D felony evading
arrest, rather than the lesser-included offense of Class E felony evading arrest.

                The statute defining the offense of evading arrest provides, “It is unlawful for any
person, while operating a motor vehicle on any street, road, alley or highway in this state, to
intentionally flee or attempt to elude any law enforcement officer, after having received any signal
from such officer to bring the vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1) (1997). This
offense is a Class E felony. Id. § (b)(3). However, if “the flight or attempt to elude creates a risk
of death or injury to innocent bystanders or other third parties,” the offense is a Class D felony. Id.
§ (b)(2), (3).

                 Thus, the question in this case is whether the defendant’s actions posed a risk of death
or injury to others. We hold that they did. According to the testimony of Officer Simmons, there
were other cars on the road during the high-speed chase. The defendant failed to yield to the flashing
blue lights and spotlights on the police vehicles which pursued him. The defendant was legally
intoxicated, weaving, and at one point, lost control of the car. Fortuitously, the defendant’s conduct
did not result in any actual bodily harm to any of those whose safety was threatened by it. However,
the evidence sufficiently supports the jury’s finding of “risk of death or injury to innocent bystanders
or other third parties.”

                                              Sentencing

               The defendant’s second appellate issue questions the propriety of the sentences
imposed for both the felony and the misdemeanor convictions. The trial court sentenced the
defendant to serve eleven months and 29 days of jail confinement at 100 percent service for his
misdemeanor DUI conviction. For the Class D felony evading arrest conviction, the trial court
imposed a four-year sentence with the first year to be served in the county jail and the remaining

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three years to be served in the Community Corrections program. The trial court ordered the two
sentences to run concurrently.

                 The essence of the defendant’s sentencing complaint is that he was sentenced harshly
as a result of the trial court’s improper consideration of the state’s evidence that he was guilty of a
drug offense, even though the jury acquitted him of the drug charges. However, he does not
challenge the length of the effective four-year sentence. Rather, he claims that the proper manner
of service of this sentence would have been one which allowed for probation with “a reasonable
term” of Community Corrections as a condition to probation, following service of the 48-hour
mandatory minimum confinement period for DUI.

               When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d) (1997).
This presumption 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).

A.      Evading Arrest - Felony Sentencing

               We first consider the propriety of the manner of service of the defendant’s four-year
sentence for the Class D felony of evading arrest.

                 In felony sentencing, the trial court has an affirmative duty to state on the record,
either orally or in writing, which enhancement and mitigating factors it found and its findings of fact.
Tenn. Code Ann. §§ 40-35-209(c), - 210(f) (Supp. 2000); State v. Troutman, 979 S.W.2d 271, 274
(Tenn. 1998); State v. Russell, 10 S.W.3d 270, 278 (Tenn. Crim. App. 1999).

                In making a felony sentencing determination, the trial court, at the conclusion of the
sentencing hearing, determines the range of sentence and then determines the specific sentence and
the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the 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 the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. See Tenn. Code Ann. § 40-35-210(a), (b) (Supp. 2001);
Tenn. Code Ann. § 40-35-103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim.
App.1993).

                A defendant who "is an especially mitigated or standard offender convicted of a Class
C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). However, a
defendant who commits “the most severe offenses, possess[es] a criminal histor[y] evincing a clear
disregard for the laws and morals of society, and [has failed] past efforts at rehabilitation” does not

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enjoy the presumption. See id. § 40-35-102(5), (6); State v. Fields, 40 S.W.3d 435, 440 (Tenn.
2001). Furthermore, the defendant’s potential for rehabilitation or lack thereof should be examined
when determining whether an alternative sentence is appropriate. Id. § 40-35-103(5). Sentencing
issues are to be determined by the facts and circumstances presented in each case. See State v.
Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

                The defendant in this case enjoys the presumption of favorable candidacy for
alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997). Moreover, he is eligible for
probation. See id. § 40-35-303(a) (Supp. 2001). Unlike the presumption of favorable candidacy for
alternative sentencing in general, a defendant bears the burden of demonstrating the suitability of
probation, in particular. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled
on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). To meet that burden, the
defendant must show that probation will "subserve the ends of justice and the best interest of both
the public and the defendant." Id. at 456 (citation omitted). In that regard, the trial court
appropriately considers the defendant’s candor and credibility, or lack thereof, as indicators of his
potential for rehabilitation. See, e.g., State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999),
perm. app. denied (Tenn. 2000); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).

                 The trial court was heavily influenced by the defendant’s denial at sentencing of any
involvement in the drug trade, which testimony the court flatly rejected given several indicators to
the contrary. The defendant testified to only sporadic employment during his adult life, and he had
not worked for some time prior to the offenses. Nevertheless, he had over $400 in his possession
when he was arrested. He claimed that he supported himself with the $200-300 per month his family
gave him and that the money in his possession at the time of the offenses constituted proceeds from
the sale of tire rims from his car. He also admitted to having purchased new rims for his tires that
cost $700, and he claimed to have financed that purchase with the funds from his family.

                Citing his acquittal on drug charges at trial, the defendant complains that the court
should not have considered any evidence that he was a drug dealer in determining the correct
sentence alternative. We disagree. Because the facts underlying those charges were intertwined with
the facts of the conviction offenses, they constitute part of the “nature and characteristics of the
criminal conduct involved,” which are properly considered by the trial court at sentencing, including
in the determination of “the appropriate combination of sentencing alternatives that shall be imposed
on the defendant.” See Tenn. Code Ann. § 40-35-210(b)(4) (Supp. 2001). Moreover, our supreme
court has said that a sentencing court properly considers facts relative to an offense of which the
defendant was acquitted if the facts are established by a preponderance of the evidence. State v.
Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). The lower court’s consideration of the facts underlying
the acquitted drug charges was not improper.

                 When the evidence presented at trial relative to the cocaine recovered at the bridge
is considered in conjunction with the defendant’s own testimony about his source of income at the
sentencing hearing, it becomes clear that the defendant’s prospects for rehabilitation and thereby,
suitability for full probation, is dubious given the trial court’s determination that his testimony was
incredible. Thus, the trial court properly rejected full probation as a sentencing option. We therefore

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reject the defendant’s appellate claim that he should be sentenced to full probation conditioned on
participation in the Community Corrections program for a “reasonable term” save the 48 hours he
is required by statute to serve in jail for his DUI conviction.

                In passing on the question of other alternatives, the lower court found that the state
had not rebutted the defendant’s favorable presumption for alternative sentencing. See Tenn. Code
Ann. § 40-35-102(6) (1997). Thus, it imposed a sentence consisting of confinement and Community
Corrections. In determining whether the defendant has borne the appellate burden of overcoming
the presumptive correctness of the sentence alternative imposed, see id. § 40-35-401(d), we return
to his prospects of rehabilitation. See id. § 40-35-103(5) (“The potential or lack of potential for the
rehabilitation or treatment of the defendant should be considered in determining the sentence
alternative or length of a term to be imposed.”).

               In that regard, we conclude that the defendant has not carried his burden of
demonstrating the error of his sentence. We agree with the trial court that some measure of
confinement was warranted and that the structured nature of the Community Corrections program
provides a suitable alternative for this defendant who is without a significant employment history,
and who albeit without a significant criminal history nevertheless appears to have been involved in
serious criminal activity. Thus, we affirm the felony sentence imposed.

B.     DUI - Misdemeanor Sentencing

               We now consider the defendant’s contention that he should be allowed to serve all
but 48 hours of his misdemeanor DUI sentence on probation with a Community Corrections
condition for a “reasonable term.”

                In contrast with felony sentencing, misdemeanor sentencing affords the sentencing
court with greater flexibility. See, e.g., State v. Johnson, 15 S.W.3d 515, 518 (Tenn. 1999), perm.
app. denied (Tenn. 2000). The misdemeanor sentencing statute only requires that the trial court
consider the enhancement and mitigating factors when calculating the percentage of the sentence to
be served "in actual confinement" prior to "consideration for work release, furlough, trusty status and
related rehabilitative programs." Tenn. Code Ann. § 40-35-302(d) (Supp. 2001); State v. Troutman,
979 S.W.2d 271, 274 (Tenn. 1998).

                A separate sentencing hearing is not mandatory in misdemeanor cases, but the court
is required to provide the defendant with a reasonable opportunity to be heard as to the length and
manner of the sentence. See Tenn. Code Ann. § 40-35-302(a) (Supp. 2001). Misdemeanor sentences
must be specific and in accordance with the principles, purpose, and goals of the Criminal
Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104 (1997), 40-35-302 (Supp. 2001);
State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced
to an authorized determinant sentence with a percentage of that sentence designated for eligibility
for rehabilitative programs. Generally, a percentage of not greater than 75 percent of the sentence
should be fixed for a misdemeanor offender; however, a DUI offender may be required to serve 100
percent of his sentence. Palmer, 902 S.W.2d at 393-94. In determining the percentage of the

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sentence, the court must consider enhancement and mitigating factors as well as the legislative
purposes and principles related to the sentencing. Id.

                 Upon service of that percentage, the administrative agency governing the
rehabilitative programs determines which among the lawful programs available is appropriate. Tenn.
Code Ann. § 40-35-302(d) (Supp. 2001). The trial court retains the authority to place the defendant
on probation either immediately or after a term of periodic or continuous confinement. Id. §
40-35-302(e). The legislature has encouraged courts to consider public or private agencies for
probation supervision prior to directing supervision by the Department of Correction. Id. §
40-35-302(f). The governing statute provides that the trial court has continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. A convicted misdemeanant, unlike a convicted
Class B, C, D, or E felon, has no presumption of entitlement to a minimum sentence. State v. Baker,
966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.
App. 1994).

               Moreover, the provisions of the Tennessee Community Corrections Act of 1985 are
not applicable to misdemeanants. See generally Tenn. Code Ann. § 40-35-106 (1997). Thus, the
only sentencing alternatives available to misdemeanants are the payment of a fine and some form
of probation. See id. § 40-35-104(c) (1997).

                 The record in this case reflects that the sentencing court considered the pertinent
principles and factors in arriving at its 100 percent service determination for the eleven month, 29
day misdemeanor sentence. The lower court found that a sentence more severe than normally
required for a first offense of DUI was appropriate because of the aggravated circumstances of this
case, to wit, the defendant was evading arrest with “a car full of dope” when he committed the DUI
offense.1 It is the defendant’s burden on appeal to convince us that this is not the appropriate
sentence. His arguments and citations have not overcome the presumptive correctness of the
sentence imposed by the lower court.

                Finally, we are compelled to correct an irregularity in the DUI judgment form. The
lower court clearly announced its intent that the defendant serve 100 percent of the misdemeanor
sentence; nevertheless, it failed to reflect this in its judgment. The general rule is that a judgment
which does not reflect a percentage of service is interpreted as requiring zero percent service. See
id. § 40-35-302(d) (Supp. 2001). An exception to that general rule is applicable when the sentencing
court’s clear intent is reflected in the transcript. See Russell, 10 S.W.3d 278-79. Such is the case
here. We therefore modify the judgment in the DUI conviction to reflect 100 percent service.
Otherwise, the judgment is affirmed.




         1
          As we stated in the felony sentencing section above, consideration of the nature and characteristics underlying
the offense is relevant to determining the manner of service of the sentence. See Tenn. Code Ann. § 40-35-210(b)(4)
(Supp. 2 001 ); State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 200 0).

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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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