        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 11, 2011

             STATE OF TENNESSEE v. JOSEPH JOHN BORGER

              Direct Appeal from the Circuit Court for Marshall County
                      No. 2010-CR-38     Robert Crigler, Judge




               No. M2010-01910-CCA-R3-CD - Filed February 28, 2011


The Defendant, Joseph John Borger, pled guilty to multiple offenses stemming from his
driving while intoxicated, and the trial court sentenced him as a Range II Offender to an
effective sentence of seven years. On appeal, the Defendant contends that his sentence is
excessive. After a thorough review of the record and applicable authorities, we affirm the
judgments of the trial court.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Chris Collins, Lewisburg,
Tennessee (at hearing and sentencing) for the Appellant, Joseph John Borger.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Chuck Crawford, District Attorney General; Chris Collins, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                          OPINION
                                           I. Facts

       This case arises from a stop of the Defendant by police on March 12, 2010, after
which officers noticed that he was intoxicated. The Defendant pled guilty to the following
offenses: driving after being declared an Habitual Motor Vehicle Offender (“HMVO”), DUI
sixth offense, violation of the implied consent law, driving on a revoked license second
offense, violation of the financial responsibility law, violation of the open container law, and
violation of the seat belt law. At the guilty plea hearing, the State summarized the facts
supporting the guilty plea submission:

       On or about March 12th, 2010, patrolman Sanders witnessed a silver Nissan
       ultimately traveling on 5th Avenue North. The driver of the vehicle, herein
       [the Defendant], was not wearing a seatbelt. The vehicle crossed the center
       line on three separate times from the intersection of 5th to Ellington Parkway.
       At the K and S Market the officer came into contact with [The Defendant].

                 [The Defendant] then had a strong odor of alcoholic beverage coming
       from his person. He asked if he had consumed any alcohol. The [D]efendant
       . . . stated that he had been drinking all day.

              His words were slurred and his eyes were bloodshot.

               [The officer] asked [the Defendant] to exit the vehicle[,] . . . [w]hile
       having to use the door to steady himself[.] [The officer] asked [the Defendant]
       to perform a field sobriety test to determine if he was intoxicated. He refused
       all tests whatsoever and . . . according to the officer, said . . . “to take him to
       jail”.

               A check of the driver’s license showed [the Defendant] was on revoked
       status. He was placed under arrest and asked to submit to a chemical test to
       show the content of the alcohol of his blood.

               After refusing that, the patrolman found three empty 40-ounce bottles
       of beer in plain view in the passenger side of the floorboard, as such the
       defendant was charged with driving under the influence sixth offense with his
       prior record:

             One offense in Rutherford County in ‘95; second offense in ‘98 in
       Rutherford County; third offense in ‘99, Rutherford County; fourth offense in
       Rutherford County 2000; and fifth offense in Rutherford County in 2002.

               He was also charged with violation of implied consent and issued
       citations for no proof of insurance, seatbelt and the open container law.

       The Defendant pled guilty and agreed to allow the trial court to determine the length
and manner of his sentences. The following evidence was presented during the Defendant’s
sentencing hearing: The State entered the facts as announced at the sentencing hearing and
also offered the presentence investigation report. The presentence report showed the

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Defendant had previously been convicted of the following offenses: two counts of public
intoxication, two counts of domestic violence, assault, aggravated criminal trespass, evading
arrest, DUI on five separate occasions, driving on a revoked or suspended license on five
separate occasions, and resisting arrest. As a result of his driving offenses, the Defendant
was declared an HMVO on November 12, 2002. The State also entered certified copies of
the Defendant’s convictions for five prior DUI convictions and the order declaring the
Defendant an HMVO.

        Chris Hill from the Board of Probation and Parole testified that he prepared the
presentence report. As part of Hill’s investigation, he interviewed the Defendant, who told
Hill that this incident was the Defendant’s fault and the result of a “stupid mistake.” Hill
agreed that the report indicated that the Defendant had five previous convictions for DUI and
that the Defendant had a probated sentence revoked in 2005. The Defendant told Hill that
he had received his GED from high school and that he had an alcohol problem, drinking a
12-pack of beer daily, for which he wanted treatment. The Defendant admitted past cocaine,
“acid,” and marijuana usage but said he was not currently using those drugs.

       Hill testified that he could not verify much of the Defendant’s work history, but he
was able to verify that he had been fired from Burger King for being tardy to work. Hill
agreed the report indicated the Defendant was an HMVO and that, despite this, the Defendant
owned a car. The Defendant told him that his girlfriend drove his car and that he himself did
not drive the car.

       On cross-examination, Hill agreed that the Defendant had not had a driving-related
charge since 2002.

       Based upon this evidence, the trial court sentenced the Defendant as a Range II
offender to three years and six months each for the Defendant’s convictions for DUI, sixth
offense, and violation of the HMVO statute, and it ordered those sentences to run
consecutively. The trial court ordered the remainder of the sentences for the misdemeanor
convictions to run concurrently to those two sentences, for a total effective sentence of seven
years in the Tennessee Department of Correction.

       It is from these judgments that the Defendant now appeals.

                                         II. Analysis

       On appeal, the Defendant contends that his sentence is excessive given the facts and
circumstances of this case. He notes that he was “polite to the probation officer preparing
his presentence report” and was “extremely forthright . . . acknowledging heavy beer

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consumption and past drug use.” The Defendant states that he wants to attend a treatment
program for his alcohol abuse and that he cannot do so while incarcerated. He states that a
more “productive use of the State’s criminal court resources” would be to offer him in-
patient rehabilitation services rather than incarceration. The State responds that the trial
court’s decision to sentence the Defendant to a substantial period of incarceration was fully
justified, considering the Defendant’s criminal history and past failures at rehabilitation.

       When a defendant challenges the length, range, or manner of service of a sentence,
this Court must conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d) (2006). This presumption, however, is conditioned upon the affirmative
showing in the record that the trial court properly sentenced the defendant. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). As the Sentencing Commission Comments to this
section note, the burden is on the appealing party to show that the sentencing is improper.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts. If the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result was
preferred. T.C.A. § 40-35-103 (2006), State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v.
Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994). In the event the record fails to demonstrate the required
consideration by the trial court, appellate review of the sentence is purely de novo. Ashby,
823 S.W.2d at 169.

       In conducting a de novo review of a sentence, we must consider: (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 mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

      The Criminal Sentencing Act of 1989 and its amendments describe the process for
determining the appropriate length of a defendant’s sentence. Under the Act, a trial court
may impose a sentence within the applicable range as long as the imposed sentence is

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consistent with the Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006);
see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).

        In order to ensure “fair and consistent sentencing,” the trial court must “place on the
record” what, if any, enhancement and mitigating factors it considered as well as its “reasons
for the sentence.” T.C.A. § 40-35-210(e). Before the 2005 amendments to the Sentencing
Act, both the State and a defendant could appeal the manner in which a trial court weighed
enhancement and mitigating factors it found to apply to the defendant. T.C.A. §
40-35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal, however, a
claim that the trial court did not properly weigh the enhancement and mitigating factors. See
2005 Tenn. Pub. Acts ch. 353, §§ 8-9. In summary, although this Court cannot review a trial
court’s weighing of enhancement factors, we can review the trial court’s application of those
enhancement factors. T.C.A. § 40-35-401(d) (2006); see Carter, 254 S.W.3d at 343.

        In the case under submission, when sentencing the Defendant, the trial court stated
the following:

               In making [my sentencing] decision I am relying on the proof adduced
       at the plea acceptance hearing and at this sentencing hearing; the Presentence
       Report, the principles of sentencing and arguments as to sentencing
       alternatives; the nature and characteristics of the criminal conduct; the
       evidence about statutory mitigating and enhancing factors. And the
       [D]efendants’ potential or lack of potential for rehabilitation and treatment.

              It does appear the [D]efendant is a Range II offender, while the two
       felonies the State relies on were pled out the same day, they do have different
       offense dates: One, July 20, ‘02 and one May 25th, ‘92, so therefore they do
       not merge and the Court finds him to be a Range II multiple offender.

              Count 1, driving after having been declared an Habitual Offender is an
       E felony, so his range on that would be 2 to 4.

              Count 2 is DUI 6th, an E. His range on that would be 2 to 4.

             Count 3, the implied consent is an A misdemeanor . . . carries up to 11
       months and 29 days.

             The revoked DL second in Count 4 merges with the Habitual Motor
       Offender.



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              Open container is a C misdemeanor. Caries up to 30 days and up to a
       $50 fine.

              [Count 6] Financial responsibility . . . has only one punishment and that
       is $100 fine and loss of license which the Court will impose right here and
       now.

              Count 7, a seatbelt violation is a C misdemeanor.

        The trial court then found applicable to the Defendant’s sentence enhancement factor
(1), that the defendant had a previous history of criminal convictions or criminal behavior,
in addition to those necessary to establish the appropriate range; and enhancement factor (8),
that the Defendant, before sentencing, failed to comply with the conditions of a sentence
involving release into the community. See T.C.A. § 40-35-114 (1) and (8) (2009). The trial
court placed “great weight” on its finding of these two enhancement factors.

       In support of enhancement factor (1) the trial court recited the Defendant’s numerous
prior convictions and his sentences for those convictions, and the two felonies that classified
him as a Range II offender: a felony DUI, fourth offense, conviction, which occurred on May
25, 2002, for which the Defendant received a sentence of eighteen months; and a felony
evading arrest conviction, which occurred on July 20, 2002, for which the Defendant
received a sentence of two years.

       In support of enhancement factor (8), the trial court noted that, while the Defendant
was on probation for his evading arrest and DUI, fourth offense, convictions, a probation
warrant was issued when he was subsequently arrested for domestic assault. His probation
was partially revoked, and he was ordered to serve an additional 150 days in incarceration.
A second revocation warrant was issued when he was again convicted of domestic assault,
and, after his probation was revoked, he was ordered to serve the remainder of his sentence
in incarceration. The Defendant served three-and-a-half years, beginning August 22, 2005.
The trial court noted that this was, perhaps, the reason he had a gap in driving-related
offenses before his arrest in this case.

        Based upon these considerations, the trial court sentenced the Defendant to three years
and six months for the DUI, sixth offense, conviction and for his violation of the HMVO
statute. The court ordered him to serve: eleven months and twenty-nine days, at 75%, for
violation of the implied consent law; thirty days, at 75%, for violation of the open container
law; and thirty days, at 75%, for the violation of the seatbelt law. The court ordered the two
three years and six months sentences to run consecutively to each other, with the other
sentences running concurrently with those, for a total effective sentence of seven years.

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       The record fully supports the trial court’s judgment. The trial court recognized the
Defendant’s “unfortunate” and “terrible” alcohol problem, but also indicated the need to
protect society. The trial court properly found the Defendant was a Range II offender,
properly applied the two enhancement factors, and properly sentenced the Defendant within
his range. We conclude that the Defendant’s sentence is consistent with the Act’s purposes
and principles. See T.C.A. § 40-35-210(c)(2) and (d); Carter, 254 S.W.3d at 343. He is not,
therefore, entitled to relief on this issue.

                                     II. Conclusion

      After a thorough review of the record and the applicable law, we conclude the record
supports the trial court’s judgments.


                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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