         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 28, 2004

             STATE OF TENNESSEE v. TERRY WAYNE PERKINS

                    Appeal from the Criminal Court for Campbell County
                             No. 11652 E. Shane Sexton, Judge



                    No. E2003-02885-CCA-R3-CD - Filed August 17, 2004


The appellant, Terry Wayne Perkins, was indicted on charges of driving under the influence, fourth
offense, operating a motor vehicle after being declared an habitual motor vehicle offender, violation
of the implied consent law, and driving on a revoked license. He was acquitted of the D.U.I. charge.
A jury convicted him of violation of the implied consent law and driving on a revoked license. He
was sentenced to an 11- month-and-29-day sentence at 75% for the violation of the implied consent
law and six months at 75% for the driving on a revoked license conviction. The two sentences were
ordered to run concurrently and the trial court ordered the appellant to serve 15 days of the sentence
in the county jail, after which he would be released on probation, and assessed a $100 fine for each
conviction. On appeal, the appellant challenges the trial court’s decision to order him to serve 15
days in jail. For the following reasons, we affirm the judgment of the trial court.



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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and JAMES
CURWOOD WITT , JR., JJ., joined.

Steve McEwen, Mountain City, Tennessee, for the appellant Terry W. Perkins.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;
William Paul Phillips, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney
General, for the appellant, State of Tennessee.
                                                      OPINION

                                                Factual Background

       According to the affidavit of complaint filed by the arresting officer:1

       On 2-17-03 affiant [a police officer with the LaFollette Police Department] observed
       . . . [the appellant] traveling east on East Central Avenue at 14th Street traveling 66
       mph in a 40 mph zone. Affiant stopped the vehicle on Foothill Drive. The above
       defendant was found to be HMVO [habitual motor vehicle offender] and have
       revoked license. The defendant also stated that he had drank [sic] 3 or 4 beers and
       admitted to taking oxycottons [sic]. The defendant was given sobriety tests which
       he failed. The defendant was read the implied consent law which he refused. The
       defendant was arrested and transported to CCSD for booking. The defendant had
       two prior DUI when checked thru NCIC.

        The appellant was subsequently indicted by the Campbell County Grand Jury on charges of
driving under the influence, fourth offense, operating a motor vehicle after being declared an habitual
motor vehicle offender, violation of the implied consent law, and driving on a revoked license. The
indictment listed three prior DUI offenses in 1993, 1997, and 1999, all occurring in Campbell
County.

        After a jury trial, the appellant was convicted of violation of the implied consent law and
driving on a revoked license. He was acquitted of the D.U.I. charge. A separate sentencing hearing
was held on November 7, 2003. At the sentencing hearing, the trial court inquired about the
appellant’s habitual motor vehicle offender status. Evidently, at the time of the offense, the appellant
did not realize that he had been declared an habitual motor vehicle offender. The appellant related
to the court that he had not been employed since he had a spinal fusion 16 months prior to the
hearing. He receives approximately $405 a month in social security benefits. The appellant also told
the court that while he has a vehicle, he does not drive it because the tags are expired and the fuel
pump is broken.

       At the conclusion of the hearing, the trial court explained the sentence as follows:

       So, let’s make sure everyone understands what I’ve done. In count three, 11/29 at 75
       percent with a hundred dollar fine plus Court costs, count four, six months at 75
       percent with a hundred dollar fine, concurrent with count three, and that sentence will
       be for an effective one 11/29; 15 days of that is unsuspended - - will be served; the
       report date, December the 7th.




       1
           A transcript of the trial does not appear in the record on appeal.

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Further, the trial court agreed to allow the appellant to serve the first five days of the sentence
consecutively, then allowed the appellant to serve the remaining ten days on weekends.
Subsequently, the appellant filed a timely notice of appeal.


                                             Sentencing

        On appeal, the appellant argues that the trial court erred by ordering him to serve 15 days of
his effective 11 month, 29 day sentence in the county jail. Specifically, he contends that the sentence
should be reduced to five days because the trial court did not make specific findings on the record
as to the enhancement and mitigating factors in determining the appropriate confinement. Further,
he argues that because he is “disabled due to a severe back injury, and due to the non-serious nature
of the convictions” a sentence of 15 days is “unduly harsh and unjustly deserved in relation to the
seriousness of the offense.” The State counters that the misdemeanor sentence is “consistent with
statutory sentencing purposes and should be affirmed by this Court.”

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        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 consistent with the
purposes and principles of the 1989 Criminal Sentencing Reform Act. See Tenn. Code Ann. § 40-
35-302(b). Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn.
1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One convicted of a
misdemeanor, unlike one convicted of a felony, is not entitled to a presumptive sentence. See State
v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the court is
required to provide the defendant with a reasonable opportunity to be heard as to the length and
manner of service of the sentence. Tenn. Code Ann. § 40-35-302(a). The trial court retains the
authority to place the defendant on probation either immediately or after a time of periodic or
continuous confinement. Tenn. Code Ann. § 40-35-302(e). In determining the percentage of the


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sentence to be served in actual confinement, the court must consider the principles of sentencing and
the appropriate enhancement and mitigating factors, and the court must not impose such percentages
arbitrarily. Tenn. Code Ann. § 40-35-302(d).

        At the conclusion of the sentencing hearing, the trial court did not make any findings of fact
on the record. The Tennessee Supreme Court has stated that in misdemeanor sentencing the trial
court did need not make specific findings of fact on the record, so long as it appears the trial judge
considered the principles of sentencing in the code and applicable enhancement or mitigating factors.
Tenn. Code Ann. § 40-35-302(d); Troutman, 979 S.W.2d at 274; State v. Russell, 10 S.W.3d 270,
278 (Tenn. Crim. App. 1999).

        In the case herein, the appellant was convicted of a violation of the implied consent law.
Under Tennessee Code Annotated section 55-10-406(a)(3), if the court or jury finds that the driver
violated the provisions of the statute while driving on a revoked, canceled or suspended license
because of a prior DUI, then such driver commits a Class A misdemeanor and shall be sentenced to
a minimum mandatory jail or workhouse sentence of five days. The five day sentence must be
served consecutively, day for day, and cannot be suspended. Tenn. Code Ann. 55-10-406(a)(3). In
the case herein, the appellant’s license had been suspended because of a prior DUI. Thus, the
mandatory minimum period of incarceration was five days. The trial court chose to extend that
sentence by ten days. Even though the trial court failed to state the reasons for the additional ten
days of incarceration on the record, we conclude that the appellant has failed to demonstrate that the
sentence was improper. Given that the trial court could have required the appellant to serve 75% of
his entire 11 month, 29 day sentence in confinement, see Tenn. Code Ann. § 40-35-302(b), we
cannot conclude that an additional ten days is an “unduly harsh” or “unjustly deserved” sentence.
Accordingly, we conclude that the trial judge did not exceed the “wide latitude of flexibility”
afforded him in misdemeanor sentencing and that ordering the defendant to serve fifteen days is
consistent with the principles of the sentencing act.

                                             Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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