            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                          JUNE SESSION, 1998         FILED
                                                     August 18, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9707-CC-00279
      Appellee              )
                            )    WILLIAMSON COUNTY
vs.                         )
                            )    Hon. DONALD P. HARRIS, Judge
BETTE J. WATSON,            )
                            )    (Sentencing)
      Appellant             )



For the Appellant:               For the Appellee:

James Robin McKinney, Jr.        John Knox Walkup
One Washington Square            Attorney General and Reporter
Suite 103
Nashville, TN 37201              Deborah A. Tullis
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 Joseph D. Baugh, Jr.
                                 District Attorney General

                                 Derek Smith
                                 Asst. District Attorney General
                                 P. O. Box 937
                                 Franklin, TN 37065-0937




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                    OPINION



         The appellant, Bette J. Watson, was indicted by a Franklin County Grand

Jury for the offenses of driving under the influence, second offense, and driving on a

revoked license, second offense. Pursuant to a plea agreement, the appellant pled

guilty to each of the indicted charges with the sentences to be determined by the

trial court. Following a sentencing hearing, the trial court imposed concurrent sixty

day periods of incarceration for DUI, second offense, and driving on a revoked

license, second offense. The appellant appeals this sentencing decision contending

(1) that the court erred by refusing to allow jail credit for her voluntary participation

in a private inpatient alcohol treatment program and (2) that she should have

received the minimum sentence of forty-five days. 1



         After review, we affirm.



                                                BACKGROUND



         At approximately 3:45 p.m. on August 17, 1996, the appellant, while driving

through a residential neighborhood, left the paved portion of the street, striking

mailboxes and finally hitting a neighbor’s parked car. Numerous children lived in

this area and routinely rode their bicycles upon the streets. Following the

appellant’s arrest on this date, her blood alcohol content level was .30 percent.




         1
          It is unclear from the record whether the appellant’s appeal involves only her DUI
sentence or encompasses both the DUI sentence and driving on a revoked license sentence. Her
brief alludes only to the DUI sentence. Clearly, her first issue is applicable only to a DUI
conviction. DUI, second offense, and driving on a revoked license, second offense, as pled to by
the a ppe llant, b oth re quire min imu m m and atory f orty-fiv e day p eriod s of c onfin em ent. T hus , little
solace would be provided if, in fact, the relief sought from the DUI sentence was granted since the
appellan t would rem ain incarc erated o n the driving on revok ed licens e convic tion. See Tenn.
Code Ann. § 55-50-504(a)(2) (1996 Supp.); Tenn. Code Ann. § 55-10-403(a)(1)(1996 Supp.). For
this reason, we elect review of both sentences.

                                                        2
         On October 29, 1996, before entering guilty pleas, the appellant voluntarily

entered the New Life Lodge, a residential alcohol and drug treatment center in

Burns, Tennessee. She successfully completed the inpatient program and was

discharged approximately three weeks later. These offenses occurred

approximately one month after the probationary period for her previous DUI

conviction had expired. On the date of these offenses, the appellant was driving on

a restricted motor vehicle operator’s license.2 The proof at the hearing established

that the appellant was fifty-five years old and a widow. Based upon these facts, the

trial court imposed concurrent sentences of six months for both second offense

convictions for DUI and driving on a revoked license, with all time suspended except

for sixty days which was to be served in the Williamson County Workhouse. The

court further ordered the appellant to be placed on supervised probation for 11

months 29 days, revoked the appellant’s driver’s license for two years, and fined the

appellant $600 for the charge of driving under the influence, second offense.



                                                    Analysis



         The appellant first contends that she should be given jail credit for time

voluntarily spent in an alcohol treatment facility. She argues that “the public policy

of the State of Tennessee should be such that it would encourage a defendant to

immediately seek treatment for the welfare of the Defendant, as well as, the citizens

of the State of Tennessee.” This identical issue was addressed in State v. Morrow,

778 S.W.2d 63, 65 (Tenn. Crim. App. 1989). In Morrow, this court found that “no


         2
         The reco rd do es no t refle ct ho w the appe llant w as in p oss ess ion of a res tricte d licen se in
view of her prior conviction for driving on a revoked license or how the appellant was convicted of
driving on a revoked license, second offense, when the appellant was in possession of a restricted
license. See Tenn. Code A nn. § 55-10-403(d)(1).

          This apparent inconsistency and the absence of other areas of proof relating to the factual
basis for the two guilty pleas were occasioned by the appellant’s failure to include a transcript of
the guilty plea he aring in the re cord. De novo review requires us to review the same facts and
circumstances of the criminal conduct involved as was reviewed by the trial court. Because the
guilty plea hea ring was not include d in the rec ords, ou r review of the facts is not from a com plete
record. The appellant mu st prepare a transcript of the evidence as is necess ary to convey a fair,
acc urate , and com plete acc oun t of wh at tran spire d with resp ect to thos e issu es th at are the b asis
of the appeal. Tenn. R. App. P. 24(b).

                                                       3
statute authoriz[es] jail credit when the defendant voluntarily enters a privately

operated residential alcohol treatment facility. . . .[T]he defendant’s argument that

jail credits for any time spent in an in-house treatment facility is more appropriately

addressed to the legislature.” See also State v. Green, No. 03C01-9502-CR-00057

(Tenn. Crim. App. at Knoxville, Oct. 26, 1995), perm. to appeal denied, (Tenn. Apr.

8, 1996); State v. Johnson, No. 02C01-9103-CR-00048 (Tenn. Crim. App. at

Jackson, Dec. 12, 1991). Because the appellant’s participation in the inpatient

treatment program was not “court ordered,” the appellant cannot receive credit for

the time she spent at New Life Lodge. Tenn. Code Ann. § 55-10-403(a)(4)(A).

This issue is without merit.



       The appellant next asserts that the trial court imposed excessive sentences

for her convictions. She states that she “simply wants to be allowed to serve the

minimum [45 day] sentence.” When an appellant complains of their sentence on

appeal, this court conducts a de novo review coupled with a presumption that the

trial court’s sentencing determinations are correct. Tenn. Code Ann. § 40-35-210(d)

(1995 Supp.). However, this presumption is conditioned upon an affirmative

showing that the trial court considered the relevant sentencing principles and all

pertinent facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). Regardless of whether the presumption of correctness is applied, the burden

of showing the impropriety of the sentence is on the appealing party. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401 (1990).




       Misdemeanor sentencing is governed by Tenn. Code Ann. § 40-35-302 (1996

Supp.). Although otherwise entitled to the same considerations under the

Sentencing Reform Act of 1989, unlike a felon, a misdemeanant is not entitled to the

presumption of a minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133

(Tenn. Crim. App. 1995) (citation omitted); State v. Warren, No. 01C01-9605-CC-


                                          4
00218 (Tenn. Crim. App. at Nashville, May 21, 1997) (citation omitted). Moreover,

as a sentencing hearing is not mandatory, see Tenn. Code Ann. § 40-35-202

(1990), trial courts are not required to explicitly place their findings on the record.

See State v. McKnight, No. 01C01-9509-CC-00313 (Tenn. Crim. App. at Nashville,

June 11, 1996), perm. to appeal denied, (Tenn. Jan. 6, 1997); see also State v.

Troutman, No. 03C01-9509-CC-00287 (Tenn. Crim. App. at Knoxville, Nov. 6,

1996), perm. to appeal granted, (Tenn. May 5, 1997) (Hayes, J. dissenting).

Additionally, we recognize that a misdemeanor sentence, as opposed to a felony

sentence, contains no sentence range. See Troutman, No. 03C01-9509-CC-00287

(Hayes, J. dissenting). Accordingly, in misdemeanor cases, the trial judge, who is

able to observe first-hand the demeanor and responses of the defendant while

testifying must be granted discretion in arriving at the appropriate sentence.

In sum, the sentencing court should examine the misdemeanor offense in the light

and character of the circumstances of the offense as well as under the mandated

sentencing principles. State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim.

App. at Knoxville, Apr. 3, 1996), perm. to appeal denied, (Tenn. Nov. 4, 1996) (citing

State v. Gilboy, 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993)).



       In this case, the trial court found that the appellant’s conduct was

“aggravated,” noting her high blood alcohol concentration, the fact that she drove on

a restricted license, and that the offense occurred in a neighborhood at a time when

children were likely to be present. We find, upon de novo review, that these facts

are amply supported by the record. Moreover, we conclude that the trial court’s

imposition of concurrent sixty day periods of incarceration for each of her two

convictions is justified and in conformity with the principles of sentencing. The

judgment of the trial court is affirmed.




                                           5
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




________________________________
JOHN H. PEAY, Judge



________________________________
JOSEPH M. TIPTON, Judge




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