          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                           DECEMBER 1998 SESSION
                                                         March 23, 1999

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,              )   No. 03C01-9804-CR-00125
                                 )
      Appellee                   )
                                 )   Monroe County
vs.                              )
                                 )   Honorable R. Steven Bebb, Judge
LAUREN E. LESLIE AND             )
JANIE WHITEHEAD,                 )
                                 )   (Misdemeanor Sentencing - Denial of
      Appellants.                )    Probation)



FOR LAUREN E. LESLIE:                FOR THE APPELLEE:

SHARON G. LEE                        JOHN KNOX WALKUP
Attorney at Law                      Attorney General & Reporter
106 College St., P.O. Box 425
Madisonville, TN 37354-0425           CLINTON J. MORGAN
                                      Counsel for the State
FOR JANIE WHITEHEAD:                  Criminal Justice Division
                                      425 Fifth Ave. North
CHARLES M. CORN,                      2d Floor, Cordell Hull Bldg.
District Public Defender              Nashville, TN 37243-0493
53-A Central Ave.,
P. O. Box 1453                        JERRY N. ESTES
Athens, TN 37364-1453                 District Attorney General

                                      RICHARD CARSON NEWMAN
                                      Assistant District Attorney General
                                      130 Washington Ave., P.O. Box 647
                                      Athens, TN 37371-0647



OPINION FILED: ____________________


AFFIRMED


JAMES CURWOOD WITT, JR.
JUDGE
‘                                     OPINION



              The defendants, Lauren E. Leslie and Janie Whitehead, pleaded guilty

in Monroe County Criminal Court to assault, a Class A misdemeanor. 1 In addition,

Leslie pleaded guilty to reckless endangerment, also a Class A misdemeanor.2 The

trial court sentenced Leslie to two concurrent sentences of eleven (11) months and

twenty-nine (29) days. The trial judge ordered him to serve thirty (30) percent of

that sentence as a “standard offender.” Whitehead received a sentence of eleven

(11) months and twenty-nine (29) days to be suspended after serving the first thirty

days in confinement. In addition, the defendants are jointly and severally liable for

restitution in the amount of $957. In this direct appeal, the defendants contend that

the trial court erred in ordering them to serve a portion of their sentences in

confinement.3 After reviewing the record on appeal and the briefs of the parties, we

affirm the judgment of the trial court.



              When an accused challenges the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d)(1997).



              A misdemeanant, unlike the felon, is not entitled to the presumption

of a minimum sentence. State v. Randall C. Conner, No. 03C01-9401-CR-00024,



       1
               Tenn. Code Ann. 39-13-101 (1997). We cannot determine from
the record whether the convictions were entered pursuant to section 39-13-
101(a)(1), (2), or (3). However, because the defendants were indicted for
aggravated assault involving serious bodily injury, see Tenn. Code Ann. 39-13-
102(a)(1)(A), we presume that Leslie and Whitehead pleaded guilty to
intentionally, knowingly or recklessly causing bodily injury to another under
paragraph (a)(1) of the section 39-13-101.
       2
              Tenn. Code Ann. § 39-13-103(a) (1997).
       3
              In the statement of the issues, Leslie also contends that the trial
court erred by imposing maximum sentences. However, this issue is not
addressed in the argument portion of the brief. This court treats as waived
issues which are not supported by argument, citation to authorities, or
appropriate references to the record. Tenn. Ct. Crim. App. R. 10(b).

                                          2
slip op. at 6 (Tenn. Crim. App., Knoxville, Aug. 12, 1994); State v. Bernell B.

Lawson, No. 63, slip op. at 7 (Tenn. Crim. App., Knoxville, May 23, 1991).

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-

35-302. The statute requires the court to impose a “specific number of months,

days or hours . . . consistent with the purposes and principles of the [Criminal

Sentencing Reform Act of 1989].” Tenn. Code Ann. § 40-35-302(b) (1997). Then

the court is to determine a percentage of the sentence which the misdemeanant

must serve before becoming eligible for certain release programs. 4 Tenn. Code

Ann. § 40-35-302(d). In determining the percentage, the court must consider

enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Tenn. Code Ann. § 40-35-302(d); State v. Palmer,

902 S.W.2d 391, 393-94 (Tenn.1995); State v. Gilboy, 857 S.W.2d 884, 888-889

(Tenn. Crim. App. 1993).



              Finally, the misdemeanor sentencing statute authorizes the court to

place a defendant on probation immediately or after service of a portion of the

sentence. Tenn. Code Ann. § 40-35-402(e). The trial court maintains jurisdiction

over a defendant placed in jail and may reduce or modify the sentence or place the

defendant on probationary supervision. Tenn. Code Ann. § 40-35-314(c). The

statute is designed to provide a trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. State v. Dwight Johnson, No.

03C01-9209-CR-00328, slip op. at 7 (Tenn. Crim. App., Knoxville, May, 18, 1993),

perm. to appeal denied (Tenn. 1994).



              As noted above, appellate review in this case is de novo review on the

record of the “length, range or the manner of service of the sentence . . . conducted

with a presumption that the [trial court’s] determinations . . . are correct.” Tenn.




       4
             Upon service of that percentage, the administrative agency
governing the rehabilitative programs has the authority in its discretion to admit
the defendant to a rehabilitative program. Tenn. Code Ann. §
40-35-302(d)(1997).

                                         3
Code Ann. § 40-35-402(d) (1997). In a recent opinion, the Tennessee Supreme

Court held that in misdemeanor sentencing a trial court is not required to place

specific findings on the record. State v. Kenneth Eugene Troutman ---S.W.2d ---,

No. 03S01-9705-CC-00049 (Tenn., Knoxville, Nov. 9, 1998). Although the court

had previously held that the statutory presumption of correctness was “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), a logical and reasonable inference from Troutman

is that Ashby does not apply to misdemeanor cases. Ashby relied in significant part

upon the factors the trial court and the appellate court are to consider as

enumerated in Code section 40-35-210(b) and upon the provision in section 40-35-

210(f) which requires the trial court to place its findings on the record as further

required by section 40-35-209.       Under Troutman, the sentencing instructions

contained in sections -209(c) and -210(f) apply only in felonies. Troutman, ---

S.W.2d at ---, slip op. at 7. Accordingly, although the trial court in the present case

did not make any findings relative to specific enhancement and mitigating factors,

the presumption of correctness nevertheless applies via the straightforward dictates

of section 40-35-401(d).



              In determining whether to grant probation, the judge must consider the

nature and circumstances of the offense, the defendants’ criminal record, their

background and social history, their present condition, including their physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best interests of both the public and the defendant. Stiller

v. State, 516 S.W.2d 617, 620 (Tenn. 1974).



              In this case, Janie Whitehead pleaded guilty to a single count of

assault, a Class A misdemeanor, and Leslie pleaded guilty to assault and reckless

endangerment, also a Class A misdemeanor.              A Class A misdemeanor is

punishable by a maximum sentence of eleven (11) months and twenty-nine (29)



                                          4
days. Tenn. Code Ann. § 40-35-111(e)(1) (1997). The trial court imposed the

maximum sentence for each conviction and denied immediate probation to both

defendants. At the close of the sentencing hearing, the prosecutor recommended

consecutive sentences for Leslie and remarked that the state “was not sure that jail

time was appropriate here.”     He asked the trial court to impose 60 days of

community service for Leslie and 30 days of community service for Whitehead. The

trial judge rejected the prosecutor’s recommendations and found that the

defendants had severely assaulted Linda Spurgeon and that the attack was well-

planned and premeditated.



                                 Janie Whitehead



              Whitehead does not contend that the imposition of the maximum

sentence was improper, but she argues that because of her good social history and

lack of any serious criminal record she should have been granted immediate

probation rather than serving the first thirty days in confinement.



              The record indicates that Whitehead was thirty-eight years old at

sentencing. The mother of two grown children, she had been steadily employed

since 1990. Her prior criminal record consists of a 1988 or 1989 conviction for

possession of marijuana in Blount County. At the hearing, she testified that she had

moved into a house owned by the defendant, Lauren Leslie. Leslie lived nearby in

a trailer. She met Linda Spurgeon at a cook-out at Leslie’s place. The two women

became embroiled in a dispute concerning Leslie that culminated in a meeting of

the three at Bat Creek. The purpose of the meeting was apparently to effect

Leslie’s return of a cellular telephone to Spurgeon.       Whitehead alleged that

Spurgeon became abusive and belligerent even though Leslie returned the cell

phone to her. Whitehead became angry and jumped out of the truck. When

Spurgeon swung her purse at Whitehead she hit the window in her car instead. The




                                         5
window cracked. A fight ensued in which Whitehead soon gained the upper hand.

She admitted

hitting the victim and, at one point, pulling her to her feet and throwing her across

the hood. According to Whitehead, Leslie stayed in the truck during the entire fight.

When another vehicle pulled into the parking area, Leslie went and spoke to the

driver. Then the victim got into her car and followed the other vehicle down the

road.



               Spurgeon testified that when she arrived at Bat Creek, Leslie was

sitting in the truck by himself. She climbed in the passenger seat and they began

to argue. He hit her in the face, and when she turned to get out of the truck,

Whitehead was standing by the door. Whitehead pulled her out and threw her to

the ground. Spurgeon testified that Leslie kicked her in the head, hit her with a beer

bottle and poured beer in her face while Whitehead choked her to the verge of

unconsciousness. She accused Leslie of breaking her car window when he swung

her purse at her. She escaped only because the two defendants were distracted

by the arrival of the third vehicle. She was treated at the emergency room, and

Angela Quillen, who also testified at the hearing, took photographs which depict the

victim’s condition after the attack.



                Although Whitehead has only a minimal criminal record and has

been self-supporting, we find that the record justifies the sentence imposed by the

trial court. The trial court rejected Whitehead’s testimony as self-serving and

incredible. He found that the defendants had plotted to ambush the victim and that

when the victim arrived at Bat Creek, Whitehead was hiding nearby. The trial

court’s factual findings are binding on this court unless the evidence in the record

preponderates against them. State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim.

App. 1990). A defendant’s truthfulness is a factor that may be considered by the

trial court on the question of probation. State v. Chrisman, 885 S.W.2d 834, 840

(Tenn. Crim. App. 1994).       Lack of truthfulness is probative on the issue of



                                          6
amenability to rehabilitation. State v. Byrd, 861 S.W.2d 377, 380 (Tenn. Crim. App.

1993). Moreover, denial of probation may be based solely upon the circumstances

of the offense when they are of such a nature as to outweigh all other factors

favoring probation. State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App.

1995).   Based upon these factors, the record supports a short period of

incarceration.



                                 Lauren E. Leslie

              Leslie pleaded guilty to the assault of Linda Spurgeon and to the

reckless endangerment of Angela Quillen.        At the sentencing hearing, Leslie

corroborated Whitehead’s version of the events of the assault. He denied hitting

Spurgeon and insisted that he had not left the truck until the other car arrived. With

respect to the reckless endangerment charge, Leslie testified that on June 1, 1997,

approximately two weeks after the assault and on the day he was released from jail,

he was driving on a road not far from Bat Creek. He encountered Quillen, a relative

and close friend of Spurgeon, who was driving in the opposite direction. According

to Leslie, he became irritated because she was smiling at him and “flipped her a

bird.” Quillen, who was familiar with Leslie and his truck, testified that he swerved

out of his lane and drove straight at her, nearly driving her off the road. When the

two wheels on the passenger side left the pavement, her vehicle came close to a

shallow pond located just off the roadside.



              Other evidence demonstrates that the defendant, who was thirty-three

years old at time of sentencing, had received his commercial driver’s license after

completing a course which trained him to become an over-the-road truck driver. His

criminal record consists of a first DUI conviction in 1991 and a second in 1992. The

state also presented evidence of orders of protection that two women had obtained

against him. At the conclusion of the hearing, the trial court denied the state’s

request for consecutive sentences but imposed the maximum sentence possible for




                                          7
each conviction and ordered the defendant to serve thirty (30) percent of his

sentence as a Range I offender.



              First, we address the portion of the judgment which states the

defendant is to serve thirty (30) percent of his sentence as a Range I offender.

See Tenn. Code Ann. § 40-35-501(c) (release eligibility date for Range I offenders

set at 30%). The sentencing ranges established in Tennessee Code Annotated

sections 40-35-105 through 109 do not apply to misdemeanor sentences.

See Tenn. Code Ann. § 40-35-105, Sentencing Comm’n. Comments (1997) (the

various classes of felonies are divided into three ranges for determining the

maximum and minimum penalties); see also State v. Kenneth Eugene Troutman, ---

S.W.2d ---, No. 03S01-9705-CC-00049, slip op. at 5 (Tenn., Knoxville, Nov. 9,

1998) (sentencing ranges to not apply to DUI convictions). Consequently, the

release eligibility date percentages have no relationship to sentencing in

misdemeanors.



              A lower court judgment requiring a misdemeanant to serve thirty

percent of his sentence as a Range I offender is equivocal. One interpretation of

such a judgment is that the percentage stated relates to the percentage that is set

under Code section 40-35-302(d). After the court sets the entire misdemeanor

sentence by fixing a “specific number of months, days or hours” pursuant to section

40-35-302(b), it sets the percentage of time to be served before the defendant

becomes “eligible for consideration” for rehabilitative programs such as work

release, furlough or trusty status. The actual decision to admit the defendant to

such a program is entrusted to the discretion of “the administrative authority

governing the rehabilitative program.” Tenn. Code Ann. § 40-35-302(d) (1997).

The percentage contemplated by subsection (d) does not establish a per se date

for release from confinement altogether because release depends upon the future

discretionary act of an administrative agency and, in any event, any release is part

of a structured “rehabilitative program” and may be only partial or episodic in nature.



                                          8
              On the other hand, use of a percentage in conjunction with a

sentencing range is analogous to the use of a percentage for calculating a release

eligibility date for parole in felony cases. See Tenn. Code Ann. § 40-35-501 (1997).

When applying the percentage term applicable to a range classification in felonies,

it is common to think of the offender being released from custody when the

percentage is served, if he otherwise qualifies. By making this analogy, we believe

the trial court contemplated that Leslie would be released on probation after serving

thirty percent of his aggregate sentence. As such, the trial court was exercising its

authority under Code section 40-35-302(e) to grant probation after a portion of the

sentence, in this case thirty percent, is served in confinement. Under subsection

(e), the release on probation is not a qualified release into a rehabilitative program.

In fact, construing the percentage factor as a condition to probation means that no

subsection (d) percentage was set.        According to subsection (d), when “no

percentage [for release into a rehabilitative program] is expressed in the judgment,

the percentage shall be considered zero percent (0%).” Tenn. Code Ann. § 40-35-

302(d) (1997). Accordingly, we view the sentence as being probated after thirty

percent is served.



              Like his co-defendant, Leslie contends that he should have been

granted immediate probation. He argues that the nature of the criminal conduct

does not justify incarceration and that his good social history and minimal criminal

record establish his suitability for full probation. Our review of the record, however,

indicates that the defendant has not established his suitability for probation.



              According to the presentence report, the defendant is a high school

graduate with some college or technical training. He provided the probation officer

with the name of only one prior employer where he had worked from June 1, 1996

to September 15, 1997. To the defendant’s credit, he had recently completed a

truck-driver’s course and had avoided any contact with either victim since June of

1997. Although he denied that he used alcohol or illegal drugs in the past, the



                                          9
defendant has two convictions for driving under the influence. He also admitted to

being very drunk on the night of the assault. Most important, however, given the

facts of this case, are the two orders of protection obtained by women other than

the victims in this case.5



              Based on these uncontroverted facts, we conclude that the trial court

did not err in imposing incarceration at thirty (30) percent rather than placing the

defendant on immediate probation. The defendant denied all responsibility for the

offenses despite having entered guilty pleas. He denied having a problem with

alcohol despite his two DUI convictions and his own admission that he was drunk

the night of the assault on Spurgeon. A lack of candor indicates that his amenability

to rehabilitation is poor. State v. Byrd, 861 S.W.2d at 380. The nature and

circumstances of the offenses are aggravated, and Leslie’s past record of violence

against women indicates that he is likely to repeat his actions. Full probation would

not be in the best interests of either the public or the defendant. Stiller v. State, 516

S.W.2d 617, 620 (Tenn. 1974). Moreover, extending the largess of full probation

in this case would depreciate the seriousness of the offenses.



                                     Conclusion

              The defendants have neither demonstrated their suitability for full

probation nor shown that their sentences are improper. We affirm Whitehead’s

sentence of eleven (11) months and twenty-nine (29) days for assault with the first

thirty days to be served in confinement and the remainder on probation. We also

affirm Leslie’s concurrent sentences of eleven (11) months and twenty-nine (29)

days for assault and reckless endangerment. Leslie must serve thirty (30) percent

of his sentence prior to being released on probation.



              Leslie’s judgment forms as contained in the record should be

corrected in conformity with this opinion. The forms indicate that Leslie is a Range


       5
              The first was entered in 1994 and the other in 1995.

                                           10
I offender; however, sentencing ranges do not apply to those convicted of

misdemeanors. See Tenn. Code Ann. § 40-35-105, Sentencing Commission

Comments (1997). The percentage of minimum service requirement is blank on

both forms. Where no percentage is indicated, the “percentage shall be considered

zero (0) percent,” Tenn. Code Ann. § 40-35-302(d) (1997). Based on the transcript

indicating that the trial judge intended that the defendant serve thirty percent of his

sentence, his judgments shall be amended to show that his sentence is probated

after serving thirty (30) percent.




                                           __________________________
                                           JAMES CURWOOD WITT JR., Judge

CONCUR:




______________________________
DAVID G. HAYES, Judge


______________________________
JERRY L. SMITH, Judge




           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                      DECEMBER SESSION, 1998




STATE OF TENNESSEE,                  )
                                           )      No. 03C01-9804-CR-00125
              Appellee                     )
                                           )      MONROE COUNTY
vs.                                        )
                                           )      Hon. R. STEVEN BEBB, Judge
LAUREN E. LESLIE AND                 )


                                          11
JANIE WHITEHEAD,                    )       (Misdemeanor Sentencing - Denial of
                                            )     Probation)
              Appellants                    )



                            SEPARATE CONCURRING

              Although I concur in the results reached by the majority as to both

defendants, I write separately to express concern with the majority’s interpretation

of the sentence imposed upon Lauren E. Leslie. The trial court ordered defendant

Leslie to serve, as a “range I standard offender,” two concurrent sentences of

eleven months, twenty-nine days at thirty percent. The majority, relying upon Tenn.

Code Ann. § 40-35-302(e), interprets the “thirty percent” criteria as the time period

defendant Leslie must serve before being released on probation. I conclude,

however, after review of the record, that the trial court’s statement of “thirty percent”

was intended to apply only to defendant Leslie’s release eligibility date for work

release or other related rehabilitative programs, not probation.



              Noting the trial court’s reference to a “range I offender,” the majority

correctly states that “release eligibility date percentages have no relationship to

sentencing in misdemeanors.” Thus, the majority properly concludes that the trial

court’s sentencing of defendant Leslie as a range I offender is misplaced and of no

significance. However, the majority improperly uses this error as the basis for

concluding that the trial court intended the ”thirty percent” to be that part of the

sentence to be served in confinement. More importantly, the majority disregards the

court’s sentencing of defendant Whitehead in construing defendant Leslie’s

sentence. In sentencing defendant Whitehead, the trial court also sentenced her

as a range I standard offender, but expressly ordered that Whitehead be placed on

probation after thirty days service. If, indeed, the trial court intended for defendant

Leslie to receive probation after service of part of his sentence, the court could

easily have done so, just as it did with defendant Whitehead. Thus, I interpret the

trial court’s order that defendant Leslie’s sentence of eleven months, twenty-nine

days be served in its entirety without any portion being suspended, Tenn. Code



                                           12
Ann. § 40-35-302(e); and with eligibility for release into rehabilitative programs

pursuant to Tenn. Code Ann. § 40-35-302(d) at thirty percent.



             Accordingly, I find the trial court’s denial of probation justified under

the facts presented.




____________________________________
                                DAVID G. HAYES, Judge




                                        13
