           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                      DECEMBER SESSION, 1998         FILED
                                                     February 17, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,          )                       Appe llate Court C lerk
                             )   No. 03C01-9803-CR-00098
      Appellee               )
                             )   CARTER COUNTY
vs.                          )
                             )   Hon. ARDEN L. HILL, Judge
TIMOTHY WAYNE REECE,         )
                             )   (Driving Under the Influence,
      Appellant              )   First Offense)



For the Appellant:               For the Appellee:

Michael D. Kellum                John Knox Walkup
Attorney for Appellant           Attorney General and Reporter
1114 Sunset Drive, Suite 3
Johnson City, TN 37604           R. Stephen Jobe
                                 Assistant Attorney General
                                 Criminal Justice Division
(AT TRIAL)                       425 Fifth Avenue North
Thomas W. Cowan, Jr.             2d Floor, Cordell Hull Building
Attorney at Law                  Nashville, TN 37243-0493
111 S. Main Street
Elizabethton, TN 37643

                                 Joe C. Crumley, Jr.
                                 District Attorney General

                                 Kenneth Baldwin
                                 Asst. District Attorney General
                                 900 East Elk Avenue
                                 Elizabethton, TN 37643




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                        OPINION



       The appellant, Timothy Wayne Reece, pled guilty in the Carter County

Criminal Court to first offense driving under the influence on October 8, 1997. The

trial court imposed a sentence of eleven months and twenty-nine days, suspended

except for eighty-six days in jail and subject to work release after serving forty-eight

hours. The appellant now appeals the sentencing decision of the trial court.



       After review, we affirm the decision of the trial court.




                                      Background



       Facts developed at the preliminary hearing held on April 4, 1997, revealed

that, on December 31, 1996, the appellant attended a New Year’s Eve celebration

with some friends. Alcohol was served at the party and the appellant drank three or

four beers. At approximately 11:30 p.m., the appellant, accompanied by Andy

DeLoach and Tabitha Turner, drove his 1983 Dodge Ramcharger to a Raceway

convenience store to purchase gasoline. Carol Tolley, the cashier at the station,

noticed that the appellant did not appear to be acting “normal.” Specifically, she

observed that the appellant had attempted to pay for the same gasoline purchase

twice, that he had let the gasoline overflow from his tank, and, finally, he drove away

from the pump with the gas nozzle still attached to his tank. Eventually, the

appellant and his two companions returned to the party.



       The party started breaking up around 12:30 a.m. and the appellant left to take

Tabitha Turner home. Aware of the appellant’s condition, others at the party,

including Andy DeLoach, advised the appellant not to drive. Ignoring these

warnings, the appellant chose to drive Tabitha home and proceeded north on

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Highway 91. Sometime after 1:00 a.m., the appellant’s vehicle collided with the

vehicle driven by thirty-five year old Carey Calhoun. The appellant later registered a

.16 blood alcohol content. Carey Calhoun, who had just gotten off work prior to the

accident, tested negative for the presence of alcohol. She later died at the hospital

as a result of injuries sustained in the accident. Subsequently, the appellant was

charged with vehicular homicide. This charge was later dismissed at the preliminary

hearing in General Sessions Court and, in May 1997, the Grand Jury indicted the

appellant on one count of driving under the influence.



       Officer Rusty Verran, a certified accident reconstructionist with the

Elizabethton Police Department, examined the accident scene. In his opinion, the

appellant was traveling northbound with his headlights on at approximately 39.77

miles per hour in a fifty mile an hour speed zone. The accident occurred in the

appellant’s lane of traffic when the vehicle operated by Carey Calhoun pulled out

into the roadway in front of the appellant. Specifically, Verran could not determine

whether Ms. Calhoun had stopped at the stop sign, but he could conclude that the

“approximate cause of this collision . . . was her action in failing to yield right of way

to th[e] [appellant’s] oncoming vehicle.” Because he was unable to determine the

speed of Ms. Calhoun’s vehicle, Officer Verran could not state whether the

appellant’s alcohol consumption played a part in the accident, i.e., whether the

appellant’s intoxication impacted his reaction time thus preventing him from avoiding

the collision.



       On October 8, 1997, the appellant entered a guilty plea to first offense DUI.

A sentencing hearing was conducted that same day. The proof at the sentencing

hearing revealed that, at the time of the accident, the appellant was a twenty-one

year old high school graduate with no prior criminal record. He is employed at J.W.

Windows Components as the supervisor on the second shift. In addition to this

employment, the appellant is a Lance Corporal in the United States Marine Corps

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Reserves and is a contract worker for the Northeast Tennessee Correctional

Academy, Boys Group Home, in Johnson City. Although the appellant denied that

he was drunk at the time of the accident and denied personal responsibility for the

accident, he admitted that he felt the grief of the victim’s family. The appellant also

stated that this event had significant impact on his life.



       Before imposing sentence, the trial court stated his disbelief of the appellant’s

assertion that he “had only three beers “ despite his blood alcohol content of .16.

The court also found:

       So, here we’ve got one involving death and .16 . . . alcohol. True he
       might have been able to go on and take his girlfriend home and get
       back home without causing an accident, and it might have been the
       victim’s fault. It might have been both their fault. We’ll never know if
       the alcohol that Mr. Reece had ingested kept him from reacting fast
       enough or stopping. There’s many accidents been avoided that’s
       called defensive driving, even if it’s not your fault. You can avoid some
       wrecks when it would have been the other person’s fault and saved
       some lives. Here we will never know. And, Mr. Reece if he does
       remember would not know because alcohol has a way of making one
       believe that he’s driving alright, that’s he’s driving within the speed
       limit, that he can react. But, alcohol not only slows down your reaction
       time, but, it slows down your ability to determine whether you’re able to
       drive or not. . . .

Based on these findings, the trial court sentenced the appellant to eleven months,

twenty nine days; suspended with the exception of eighty-six days to be served in

jail subject to work release after service of forty-eight hours.




                                        Analysis



       The appellant contends that the trial court imposed an excessive sentence for

his conviction. Specifically, the appellant argues that the trial court improperly

considered the death of the Carey Calhoun in determining the appellant’s

incarcerated portion of his sentence. In addressing the appellant’s challenge, we

are mindful that our de novo review is conditioned with the presumption that the


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sentencing determination of the trial court is correct. See Tenn. Code Ann. § 40-

35-401(d) (1997). Moreover, the appellant bears the burden of establishing the

sentence imposed by the trial court is improper. Sentencing Commission

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



        Again, the appellant pled guilty to driving under the influence, first offense, a

class A misdemeanor. See Tenn. Code Ann. § 55-10-401 and § 55-10-403(m)

(1996 Supp.). Our legislature has provided that a defendant convicted of first

offense DUI “shall be confined . . . for not less than forty-eight hours nor more than

eleven months and twenty-nine days.” Tenn. Code Ann. § 55-10-403(a)(1).

Furthermore, “all persons sentenced under subsection (a) shall, in addition to the

service of at least the minimum sentence, be required to serve the difference

between the time actually served and the maximum sentence on probation.” Tenn.

Code Ann. § 55-10-403(c). Thus, the length of a defendant’s sentence for a first

offense DUI is eleven months, twenty nine days. See generally State v. Troutman,

979 S.W.2d 271, 273 (Tenn. 1998). In effect, the DUI statute mandates a maximum

sentence for a DUI conviction with the only function of the trial court being to

determine what period above the minimum period of incarceration established by

statute, if any, is to be suspended.1 See Troutman, 979 S.W.2d at 273; State v.

Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996), perm. to appeal denied,

(Tenn. 1997); State v. Brice, No. 03C01-9605-CC-00189 (Tenn. Crim. App. at

Knoxville, Dec. 3, 1996). Thus, the trial court’s imposition of a sentence of eleven

months, twenty-nine days is mandated by our legislature and is not improper.



            The sentencing court must also determine the percentage of the sentence

which the defendant shall serve. Tenn. Code Ann. § 40-35-302(d). Upon service of



        1
         A DUI offender, unlike other misdemeanor offenders, can be sentenced to serve the
entire sen tence im posed , or 100% . State v. Palmer, 902 S.W.2d 391, 393-94 (T enn. 1995).
Compare Tenn. C ode An n. 40-35 -302(d) (1996 S upp.) (m aximu m perc entage is 75% ).

                                               5
that percentage, the administrative agency governing the rehabilitative programs

determines which among the lawful programs available is appropriate. In

determining the percentage of the sentence, the trial court must consider

enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. See Troutman, 979 S.W.2d at 273-74; State v.

Warren, No. 01C01-0905-CC-00218 (Tenn. Crim. App. at Nashville, May 21, 1997)

(citing Tenn. Code Ann. § 40-35-302(d); State v. Palmer, 902 S.W.2d 391, 393-94

(Tenn. 1995)). In observance of the less stringent procedures attached to

misdemeanor sentencing,2 upon de novo review, we cannot conclude that the trial

court’s grant of release eligibility following a period of forty-eight hours confinement

was arbitrarily imposed. See Troutman, 979 S.W.2d at 274.



            Finally, the trial court retains the authority to place the defendant on

probation either immediately or after a term of periodic or continuous confinement.

Tenn. Code Ann. § 40-35-302(e). The statutory scheme is designed to provide the

trial court with continuing jurisdiction in the misdemeanor case and a wide latitude of

flexibility. Additionally, we observe that the misdemeanant, unlike the felon, is not

entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d

829, 832 (Tenn.Crim.App.1994). Thus, we are confronted with the propriety of a

sentence of eighty-six days confinement.



        In the present case, it is clear from the record that the trial court considered

the death of Carey Calhoun in imposing the appellant’s sentence. It is also clear

from the record that the appellant’s intoxication was not the proximate cause of the

accident, and, thus, the victim’s death could not be considered as an enhancement



        2
           In State v. Troutman, 979 S.W.2d at 273, our supreme court recognized that the
misdemeanor sentencing provisions contained in the 1989 Sentencing Act do not require that the
trial court ho ld a sente ncing he aring, see Tenn. Code Ann. § 40-35-302 (1996 Supp.), do not
require that the trial court place its findings on the record, and do not require that a presentence
report be prepare d, see Sentencing Commission Comments, Tenn. Code Ann. § 40-35-302;
Tenn. Code An n. § 40-35-302(a)(1996).

                                                 6
factor. See Brice, No. 03C01-9605-CC-00189; State v. Andrews, No. 02C01-9201-

CC-00024 (Tenn. Crim. App. at Jackson, Jan. 20, 1993). Accordingly, it was error

for the court to consider Calhoun’s death in imposing sentence.



       Notwithstanding the trial court’s error in considering the victim’s death, the

record supports the trial court’s concerns of the appellant’s lack of candor regarding

his level of intoxication. Additionally, the record reflects the appellant’s awareness

of his impaired state at the time he elected to drive under the influence and the

appellant’s disregard of the safety of Tabitha Turner, the passenger in his vehicle.

The trial court imposed a sentence of confinement of eighty-six days when it could

have extended confinement to eleven months, twenty-nine days, as there is no

presumptive minimum sentence in misdemeanor sentencing. Although the

appellant has an admirable employment history and no prior criminal history, we

cannot conclude that the sentence imposed by the trial court was improper.

Accordingly, the sentence imposed by the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



_________________________________
JERRY L. SMITH, Judge



_________________________________
JAMES CURWOOD WITT, JR., Judge




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