        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 20, 2009

          STATE OF TENNESSEE v. VIOLA DARLENE STEPHENS

              Direct Appeal from the Circuit Court for Franklin County
                        No. 18157     J. Curtis Smith, Judge




              No. M2008-02847-CCA-R3-CD - Filed November 10, 2010


Defendant, Viola Darlene Stephens, pled guilty to theft of property valued at less than $500,
a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The trial
court sentenced her to eleven months, twenty-nine days for the theft conviction, to serve six
months, and six months for driving on a revoked license, to be fully served in incarceration.
The sentences were ordered to be served concurrently with each other. On appeal, Defendant
contends that the trial court erred in not stating whether it had considered a sentence of
community corrections. After a thorough review of the record, we affirm the judgments of
the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
J ERRY L. S MITH, JJ., joined.

Philip A. Condra, District Public Defender; Robert G. Morgan, Assistant Public Defender;
and Vanessa King, Assistant Public Defender, Jasper, Tennessee, for the appellant, Viola
Darlene Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin Ball, Assistant Attorney
General; J. Michael Taylor, District Attorney General; William Copeland, Assistant District
Attorney General; and Steve Blount, Assistant District Attorney General, for the appellee,
the State of Tennessee.
                                         OPINION

I. Background

       At the guilty plea submission hearing on August 28, 2008, the State offered the
following factual basis in support of Defendant’s plea:

       Your Honor, if we went to trial in this matter, our primary witnesses would
       come from employees at the Dollar General Store and the Winchester Police
       Department. We believe the testimony would come, first, from the Dollar
       General Store employees and they would testify they made observations of Ms.
       Stephens taking items out of the store without paying for them, and actually
       leaving in a particularly described vehicle with a particular license plate. They
       had immediately called the police. The police arrived after Ms. Stephens had
       left.

       As they were taking a report, the employees informed the officer that that
       particularly described vehicle with that license plate had actually pulled back
       in the parking lot and appeared she was coming back in with a couple of the
       items that had been taken. The officer ultimately observed that. He ultimately
       talked with Ms. Stephens. Ms. Stephens at that time denied she’d taken the
       items, but based on the proof presented, he ended up taking her in custody and
       going out and looking in the vehicle, and the remaining stolen items were
       found in her vehicle and they charged her with theft.

       As he was investigating that particular action, Your Honor, he ran her through
       dispatch and discovered that she was operating on a revoked license and
       because they saw her leave in a car and he saw her return in the car driving on
       public roads, he charged her with driving on revoked.

       At the sentencing hearing, Defendant testified that on the day of the offenses, she had
just been released from “rehab” and stopped by the Dollar General Store to purchase
something to eat for herself and one of her sons. Defendant said that she did not have
anywhere to stay until the following day, and she had hit “rock bottom.” She testified that
she has two sons, ages twenty-six and sixteen, and that another son died in 1991 when he was
two and a half months old. Defendant testified that she no longer drives, and her oldest son
takes her places “[w]hen he can.” She said that a bus transports her and her younger son to
doctor appointments. Defendant testified that she has been renting a house for almost a year,
and she has a good landlord.



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        Defendant testified that she was married for seventeen years and then divorced. She
moved to a Cumberland Place Apartment with her mother and had several cars stolen, and
other things happened. Defendant testified that she was homeless at different times, and she
began receiving treatment for mental illness at Centerstone around eight to ten years prior
to the hearing. She stated that she now has monthly meetings with a social worker and a
doctor at Centerstone, and they have diagnosed her as bipolar and having an anxiety disorder.
Defendant testified that she and the social worker, Ms. Langley, have worked out a treatment
plan, and she is participating in group therapy. She is also taking medication as part of her
treatment, and she receives disability benefits. Defendant hoped to eventually be able to
work “maybe 15 hours a week.” She also attends Alcoholics Anonymous (AA) meetings.

       Defendant admitted that she has misdemeanor convictions for four thefts, several
DUIs, and forgery/ passing a forged instrument. She said that the convictions happened
while she was “living on the road,” and she received the forgery charge after she was robbed,
and her car was stolen. She was on probation at the time, and went to prison for the
revocation. Defendant testified that she is not using alcohol, marijuana or any other drugs.

II. Analysis

       In this appeal Defendant does not contest the length of her effective sentence. Neither
does she specifically contest the length of incarceration. She has limited her issues on appeal
to the argument that the trial court declined to consider her request for sentencing to
community corrections.

        When there is a challenge to the 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. T.C.A. § 40-35-401(d) (2006). 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). The burden of showing that the sentence is improper is upon the
appellant. Id. In the event the record fails to demonstrate the required consideration by the
trial court, review of the sentence is purely de novo. Id. If appellate review, however,
reflects that the trial court properly considered all relevant factors and its findings of fact are
adequately supported by the record, this court must affirm the sentence, “even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991).

       Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-
302, which provides, in part, that the trial court shall impose a specific sentence that is
consistent with the purposes and principles of the 1989 Sentencing Reform Act. See T.C.A.

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§ 40-35-302(b). Although the Sentencing Reform Act typically treats misdemeanants and
felons the same, misdemeanants are not given the presumption of a minimum sentence. See
State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing
hearing is not required in misdemeanor sentencing, but the trial court must “allow the parties
a reasonable opportunity to be heard on the question of the length of any sentence and the
manner in which the sentence is to be served.” T.C.A. § 40-35-302(a). A misdemeanor
sentence, unlike a felony sentence, has no sentence range. State v. Baker, 966 S.W.2d 429,
434 (Tenn. Crim. App. 1997).

       The 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). The trial
court, however, must impose a specific sentence for a misdemeanor conviction consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. T.C.A. § 40-
35-302(d); State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). The trial court should
consider enhancement and mitigating factors in making its sentencing determinations;
however, unlike the felony sentencing statute, which requires the trial court to place its
findings on the record, the misdemeanor sentencing statute “merely requires a trial judge to
consider enhancement and mitigating factors when calculating the percentage of a
misdemeanor sentence to be served in confinement.” State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998). The misdemeanor offender must be sentenced to an authorized
determinate sentence with a percentage of not greater than seventy-five percent to be served
by the defendant before he or she is eligible for rehabilitative programs. T.C.A. § 40-35-
302(b) and (d). Those convicted of a misdemeanor are not presumed eligible for alternative
sentencing. See State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995); State v.
Robert Edward Joffe, No. E2004-02926-CCA-R3-CD, 2006 WL 1288597, at *6 (Tenn.
Crim. App., at Knoxville, May 11, 2006), perm. app. denied, (Tenn. Sept. 5, 2006). When
a defendant challenges a misdemeanor sentence, this Court conducts a de novo review with
a presumption that the trial court's determinations are correct. Id. § 40-35-401(d)

       The purpose of the Community Correction Act is to:

       (1) Establish a policy within the state to punish selected, nonviolent felony
       offenders in front-end community based alternatives to incarceration, thereby
       reserving secure confinement facilities for violent felony offenders; and

       (2) Establish a mechanism whereby state funds are granted to local
       governments and qualified private agencies to develop a range of front-end
       community based punishments for eligible offenders under this chapter.




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T.C.A. § 40-36-103(1)-(2), emphasis added. A defendant is eligible for participation in a
community corrections program if the defendant satisfies the following minimum eligibility
criteria:

       40-36-106. Eligible offenders. - (a)(1) An offender who meets all of the
       following minimum criteria shall be considered eligible for punishment in the
       community under the provisions of this chapter:

       (A) Persons who, without this option, would be incarcerated in a correctional
       institution;

       (B) Persons who are convicted of property-related, or drug/alcohol-related
       felony offenses or other felony offenses not involving crimes against the
       person. . . ;

       (C) Persons who are convicted of nonviolent felony offenses;

       (D) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;

       (E) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence;

       (F) Persons who do not demonstrate a pattern of committing violent offenses;
       and

              (2) Persons who are sentenced to incarceration or are on escape
              at the time of consideration will not be eligible for punishment
              in the community.

Id. § 40-36-106(a), emphasis added. In the present case, Defendant was convicted of two
misdemeanors rather than felony offenses. Because she does not satisfy all of the minimum
criteria set forth in T.C.A. § 40-36-106 or the purpose of the Community Corrections Act,
Defendant is not eligible for community corrections. Moreover, the misdemeanor sentencing
statute does not authorize a trial court to place a defendant on community corrections. See
T.C.A. § 40-35-302. Therefore, we conclude that the trial court did not err in failing to state
whether community corrections may be applied to a misdemeanor sentence or whether it
considered such a sentence for Defendant.




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                              CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.

                                           _________________________________
                                           THOMAS T. WOODALL, JUDGE




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