         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 3, 2002

               STATE OF TENNESSEE v. JOE DAVID HILLIARD

                   Direct Appeal from the Circuit Court for Carroll County
                         No. 01CR1746     C. Creed McGinley, Judge



                   No. W2002-00873-CCA-R3-CD - Filed January 13, 2003


The defendant was convicted by a Carroll County jury of simple assault and sentenced by the trial
court to eleven months and twenty-nine days, with all jail time suspended except for sixty days in
the county jail. The sole issue in this appeal is whether the trial court erred in denying total
probation. We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL, J., joined.
ALAN E. GLENN, J., not participating.

Dwayne D. Maddox, III, Huntingdon, Tennessee, for the appellant, Joe David Hilliard.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
G. Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant was indicted by the Carroll County Grand Jury for the offense of aggravated
assault based upon injuries he inflicted upon the victim, Mark Webb, on June 16, 2001. The jury
found the defendant guilty of the lesser-included offense of simple assault. The trial court sentenced
the defendant to eleven months and twenty-nine days, but suspended the sentence with the exception
of sixty days of incarceration. The defendant now appeals the denial of total probation. We see no
reason to disturb the judgment of the trial court.




                                              FACTS
        The state’s proof at trial revealed that the victim was invited to and attended a party at the
residence of Amber Sanders at approximately 11:00 p.m. on June 16, 2001, where he consumed four
beers. At approximately 1:30 a.m., the defendant, who attended the party uninvited and was also
drinking beer, confronted the victim concerning a problem with an automobile the victim bought
from the defendant’s stepfather some two years prior. The defendant yelled at and cursed the victim
and pushed him to the ground, although the victim never touched or threatened the defendant. The
victim arose, walked away and looked back at the defendant, at which time the defendant rendered
the victim unconscious by striking him in the face with his fist.

        The victim was treated at the local emergency room where he received stitches to his
forehead, eye and lip. He further suffered three facial fractures and a fractured frontal sinus. The
sentencing hearing testimony indicated the victim underwent surgery for the nose fracture after trial.
The victim had substantial medical expenses and missed three weeks of work as a result of his
injuries.

       The defendant testified at trial that it was the victim who started the argument; the defendant
pushed him down; the victim arose and went behind a vehicle to its trunk; the victim then
approached the defendant; and the defendant struck the victim, fearing the victim might have a
weapon.

        As stated, the defendant was tried for the offense of aggravated assault. The jury rejected
the defendant’s self-defense theory and found the defendant guilty of the lesser-included offense of
simple assault.


                                         SENTENCING FINDINGS

        In requiring the defendant to serve sixty days of incarceration, the trial court noted the
“brutality” of the attack by the defendant, who was an uninvited guest at the party. The trial court
further noted that the defendant “blind-side[d]” and “sucker punch[ed]” the victim, thereby causing
him to incur substantial medical expenses for his significant injuries. In doing so, the trial court, like
the jury, implicitly rejected the defendant’s trial testimony regarding the facts surrounding the
assault. The trial court also noted that the defendant was much larger than the victim.1




        1
          Trial testimony indicated the victim weighed approximately 130 pounds. Defendant’s application for pretrial
diversion indicates that the defendant weighed 18 5 pounds.

                                                        -2-
        The trial court considered the defendant’s relatively young age of twenty-four, his
employment history, and his current status on child support as positive factors.2 However, the trial
court concluded that the facts and circumstances surrounding the offense indicated the need for sixty
days of “shock incarceration.”


                                         STANDARD OF REVIEW

        It is this court’s duty to conduct a de novo review of the record with a presumption the trial
court’s determinations are correct when a defendant appeals the length, range, or manner of service
of his or her sentence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999).

       The defendant has the burden of establishing suitability for total probation. Tenn. Code Ann.
§ 40-35-403(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). A defendant
seeking total probation bears the burden on appeal of showing the sentence imposed is improper,
and that total probation will be in the best interests of the defendant and the public. State v. Baker,
966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        Unlike the felon, a defendant convicted of a misdemeanor enjoys no presumption of a
minimum sentence. State v. Humphreys, 70 S.W.3d 752, 768 (Tenn. Crim. App. 2001). Still, the
trial court should consider enhancement and mitigating factors, the purposes of the Criminal
Sentencing Reform Act of 1989, and general sentencing principles in imposing the sentence. Tenn.
Code Ann. § 40-35-302(d). A trial court is allowed greater flexibility in setting misdemeanor
sentences than felony sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999).




         2
          The defendant contends in his brief that he “has no prior record of any kind.” At the sentencing hearing, the
prosecutor responded in the negative when asked by the trial court whether the defendant had “any prior record.”
Defense counsel argued at the sentencing hearing that the defendant “do es not have any prior convictions.” The
defendant did not testify at the sentencing hearing. We note the defendant’s sworn application for diversion indicates
the following criminal histo ry:

                  August 1, 1997 - Simple Assault, Carroll County General Sessions, Defendant
                  placed on Pre-Trial Diversion and case was dismissed.

                  January 27, 1998 - Theft Under $5 00.00 , Carroll Co unty General Sessions,
                  Defendant placed on unsupervised probation, which he completed.

Neither the parties nor the trial court mentioned the theft at the sentencing hearing. Because this was not explored at
the hearing, we decline to furthe r add ress it.

                                                         -3-
                                           ANALYSIS

       We conclude that the defendant has not met his burden of establishing his entitlement to total
probation. The trial court properly considered the nature and circumstances of the offense in which
the much larger defendant, an uninvited guest at the party, blind-sided the smaller victim, thereby
causing him significant injuries which necessitated surgery and substantial medical expenses. In
consideration of the flexibility allowed the trial court in misdemeanor sentencing, we are unable to
conclude the trial court erred in requiring sixty days of incarceration for this misdemeanor offense.

       The judgment of the trial court is affirmed.




                                                      JOE G. RILEY, JUDGE




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