         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs September 20, 2000 Session

              STATE OF TENNESSEE v. KENNETH RAY JARMAN

             Appeal as of Right from the Criminal Court for Montgomery County
                          No. 40524    John H. Gasaway, III, Judge



                   No. M1999-01382-CCA-R3-CD - Filed November 17, 2000


The appellant, Kenneth Ray Jarman, pled guilty in the Montgomery County Criminal Court to one
count of driving under the influence (hereinafter “DUI”), fourth offense or over, a class E felony;
one count of driving on a revoked license, sixth offense, a class A misdemeanor; and one count of
violating the open container law, a class C misdemeanor. The trial court sentenced the appellant to
two years incarceration in the Tennessee Department of Correction for the DUI conviction, and
imposed a $3000 fine. The trial court also sentenced the appellant to eleven months and twenty-nine
days incarceration in the Montgomery County Jail for the driving on a revoked license conviction,
and imposed a $350 fine. The trial court further sentenced the appellant to thirty days incarceration
in the Montgomery County Jail for the violation of the open container law. Additionally, the trial
court ordered the appellant’s sentences to be served concurrently. The appellant raises the following
issues for review: (1) whether the enhancing factors applied by the trial court were inapplicable to
this case; and (2) whether the trial court erred in sentencing the appellant to serve the full term of his
two-year sentence in the Tennessee Department of Correction. Upon review of the record and the
parties’ briefs, we affirm in part and modify the judgment of the trial court.


   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed as
                                         modified.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES, and JOE
G. RILEY, JJ., joined.

Collier W. Goodlett, Clarksville, Tennessee, for the appellant, Kenneth Ray Jarman.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General,
and Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background
                On September 6, 1998, Officer John Smith observed the appellant driving erratically
on Highway 48/13 in Montgomery County. The appellant’s vehicle repeatedly crossed both the
double yellow line and the white line. Officer Smith attempted to stop the appellant, but the
appellant continued to proceed west, weaving and crossing the center line. After the appellant finally
stopped his vehicle, Officer Smith approached him and noticed the appellant’s bloodshot eyes and
a strong smell of alcohol about the appellant’s person. The appellant moved unsteadily, slurred his
speech, and only slowly followed Officer Smith’s verbal commands. Moreover, the appellant failed
the field sobriety tests administered by Officer Smith. Officer Smith arrested the appellant for
driving under the influence, and later discovered an open can of beer in the floorboard of the
appellant’s vehicle. Furthermore, the appellant’s driver’s license was in revoked status at the time
of the incident.

                Subsequently, the appellant pled guilty in the Montgomery County Criminal Court
to one count of driving under the influence (hereinafter “DUI”), fourth offense or over, a class E
felony; one count of driving on a revoked license, sixth offense, a class A misdemeanor; and one
count of violating the open container law, a class C misdemeanor.1 The trial court sentenced the
appellant to two years incarceration in the Tennessee Department of Correction for the DUI
conviction, and imposed a $3000 fine. The trial court also sentenced the appellant to eleven months
and twenty-nine days incarceration in the Montgomery County Jail for the driving on a revoked
license conviction, and imposed a $350 fine. The trial court further sentenced the appellant to thirty
days incarceration in the Montgomery County Jail for the violation of the open container law.
Additionally, the trial court ordered the appellant’s sentences to be served concurrently. The
appellant raises the following issues for review: (1) whether the enhancing factors applied by the trial
court were inapplicable to this case; and (2) whether the trial court erred in sentencing the appellant
to serve the full term of his two-year sentence in the Tennessee Department of Correction.

                                             II. Analysis
                Appellate review of the manner of service of a sentence is de novo. Tenn. Code Ann.
§ 40-35-401(d) (1997); see also State v. Dowdy, 894 S.W.2d 301, 304 (Tenn. Crim. App. 1994).
This court considers the following factors in conducting its de novo review: (1) the evidence, if any,
received at the trial and the sentencing hearing; (2) the pre-sentence 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; (6) any statement by the defendant in his own behalf; and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also State v.
Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). Additionally, if the record reveals that the
trial court adequately considered sentencing principles and all relevant facts and circumstances, this
court will accord the trial court’s determinations a presumption of correctness. Tenn. Code Ann. §

         1
            We no te that the jud gmen t incorrectly states that the ap pellant pled guilty to D UI, third offense or over.
However, the judgment clearly shows that the appellant pled guilty to a felony, which would be DUI, fourth offense or
over. See Tenn. Code Ann. § 55-10-403(a)(1)(1997). Additionally, the trial judge makes reference to the appellant
pleading guilty to DUI, fourth offense or over.

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40-35-401(d); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Accordingly, the burden is on
the appellant to demonstrate the impropriety of his sentence(s). Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments.

                                 A. Improper Enhancement Factors
               The appellant alleges that the enhancement factors applied by the trial court were
inapplicable in this case. However, in his brief, the appellant failed to make any argument or cite
to any authority in support of his contention. Therefore, the appellant waives this issue. Tenn. R.
App. P. 27(a)(7), Tenn. R. Ct. Crim. App. 10 (b); see also State v. Dickerson, 885 S.W.2d 90, 93
(Tenn. Crim. App. 1993).

               Regardless of the waiver, the record reveals that the trial court correctly applied two
enhancement factors to the appellant: (1) the appellant has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range, and (8) the
appellant has a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community. Tenn. Code Ann. § 40-35-114(1997). The record reveals that
the appellant has been arrested fifty-seven times, resulting in twenty misdemeanor convictions and
one felony conviction. Therefore, the trial court properly applied enhancement factor (1) to the
appellant. Additionally, the appellant admitted at the sentencing hearing that he has previously
violated probation. Accordingly, the trial court correctly applied enhancement factor (8) to the
appellant. This issue is without merit.

                                       B. Alternative Sentences
                The appellant also argues that the trial court erred by denying him alternative
sentencing and instead ordering him to serve his entire sentence in the Tennessee Department of
Correction. Initially we note that although the trial court has discretion in determining the weight
to afford each enhancement and mitigating factor, “the trial court must preserve in the record the
factors it found to apply and the specific findings of fact upon which it applied the sentencing
principles to arrive at the sentence.” State v. Anderson, 985 S.W.2d 9, 19 (Tenn. Crim. App. 1997).
In the instant case, the trial court stated that it considered the sentencing principles contained in
Tenn. Code Ann. § 40-35-103 in determining that the appellant is ineligible for alternative
sentencing. However, the trial court did not specifically say how the sentencing principles apply to
this appellant. Accordingly, we are unable to determine if the trial court correctly applied the
sentencing principles. See Ashby, 823 S.W.2d at 168. Therefore, we do not afford the trial court’s
conclusion with a presumption of correctness. Nevertheless, we affirm the judgment of the trial
court.

                 To determine if the appellant is eligible for an alternative sentence, we must first
establish if the appellant is entitled to the statutory presumption that he is a favorable candidate for
alternative sentencing. State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. at 1996). Tenn.
Code Ann. § 40-35-102(1997) provides the guidelines for which offenders are to be presumed
favorable candidates for alternative sentences:


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        (5) In recognition that state prison capacities and the funds to build and maintain
        them are limited, convicted felons committing the most severe offenses, possessing
        criminal histories evincing a clear disregard for the laws and morale of society, and
        evincing a failure of past efforts at rehabilitation shall be given first priority
        regarding sentencing involving incarceration; and
        (6) A defendant who does not fall within the parameters of subdivision (5) and 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.
See also State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993), overruled on other
grounds by State v. Hooper, No. M1997-00031-SC-R11-CD, 2000 WL 1357520, at *6 (Tenn. Crim.
App. at Nashville, September 21, 2000). Accordingly, although alternatives to incarceration are
encouraged for standard or mitigated offenders who have committed C, D, or E felonies, there is also
an intent to incarcerate those offenders “whose criminal histories indicate a clear disregard for the
laws and morals of society and a failure of past efforts to rehabilitate.” State v. Chrisman, 885
S.W.2d 834, 840 (Tenn. Crim. App. 1994).

               In this case, the appellant was convicted, as a Range I standard offender, of an E
felony. Therefore, he meets the first two criteria for a presumption of alternative sentencing.
However, because of the appellant’s extensive criminal history, he clearly falls within the parameters
of Tenn. Code Ann. § 40-35-102(5). Accordingly, he is not entitled to the presumption of being a
favorable candidate for alternative sentencing. See State v. Duff, No. 02C01-9307-CR-00152, 1995
WL 390951, at *4 (Tenn. Crim. App. at Jackson, June 28, 1995); State v. Christian, No. 01C01-
9708-CC-0035, 1998 WL 531850, at *2 (Tenn. Crim. App. at Nashville, August 25,1998).

                Regardless, even if the appellant could be presumed to be a favorable candidate for
alternative sentencing, this court has observed that “[t]he presumption can be successfully rebutted
by facts contained in the presentence report, evidence presented by the State, the testimony of the
accused or a defense witness, or any other source provided it is made a part of the record.” Bonestel,
871 S.W.2d at 167. Specifically, the following sentencing principles can constitute “evidence to the
contrary” to rebut the presumption in favor of alternative sentencing:
         (A) Confinement is necessary to protect society by restraining an [appellant] who
        has a long history of criminal conduct;
        (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
        confinement is particularly suited to provide an effective deterrence to others likely
        to commit similar offenses; or
        (C) Measures less restrictive than confinement have frequently or recently been
        applied unsuccessfully to the [appellant].
Tenn. Code Ann. § 40-35-103(1)(1997); see also Ashby, 823 S.W.2d at 169; State v. Bingham, 910
S.W.2d 448, 454 (Tenn. Crim. App. 1995), overruled on other grounds by State v. Hooper, No.
M1997-00031-SC-R11-CD, 2000 WL 1357520, at *6 (Tenn. Crim. App. at Nashville, September
21, 2000).


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                As we stated earlier, the presentence report reveals that the appellant has been arrested
fifty-seven times, and has been convicted of twenty misdemeanors and one felony. This indicates
a long history of criminal conduct. See Fletcher, 805 S.W.2d at 787; State v. Holt, No. 02C01-9809-
CC-00272, 1999 WL 148087, at *3 (Tenn. Crim. App. at Jackson, March 19, 1999). Moreover, the
appellant has received suspended sentences in the past and has nevertheless continued to violate the
law, suggesting that measures less restrictive than confinement have frequently or recently been
applied unsuccessfully to the appellant. See State v. Lilly, No. 03C01-9505-CR-00143, 1996 WL
87441, at *4 (Tenn. Crim. App. at Knoxville, March 1, 1996); State v. Sweat, No. 03C01-9708-CC-
0348, 1998 WL 707797, at *3 (Tenn. Crim. App. at Knoxville, October 12, 1998). This constitutes
sufficient “evidence to the contrary” to deny the appellant an alternative sentence. See State v.
Davis, No. 03C01-9710-CR-00433, 1998 WL 743649, at *2 (Tenn. Crim. App. at Knoxville,
October 15, 1998), perm. app. denied (Tenn. 1999).

                 Although the appellant did not raise the issue in his brief, we note the trial court
incorrectly sentenced the appellant to thirty days incarceration in the Montgomery County Jail for
violating the open container law. Tenn. Code Ann. § 55-10-416(b)(1)(1997) states that “[a] violation
of this section is a class C misdemeanor, punishable by fine only.” Therefore, the trial court had no
authority to sentence the appellant to incarceration for a violation of the open container law.
Accordingly, we vacate the appellant’s sentence of incarceration for the violation of Tenn. Code
Ann. § 55-10-416(a)(1). State v. Young, No. M1998-00402-CCA-R3-CD, 1999 WL 117954, at *9
(Tenn. Crim. App. at Nashville, December 15, 1999), perm. app. denied (Tenn. 2000).

                                         III. Conclusion
               Based upon the foregoing, we affirm the trial court’s denial of alternative sentencing,
but we vacate the appellant’s sentence of incarceration for the violation of the open container law.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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