             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                 FILED
                            MAY 1997 SESSION
                                                                  July 30, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )
             Appellee,            )    No. 03C01-9608-CR-00318
                                  )
                                  )    Hawkins County
v.                                )
                                  )     Honorable James E. Beckner, Judge
                                  )
TIMMY LYNN CASTLE,                )     (Sentencing)
                                  )
             Appellant.           )


For the Appellant:                     For the Appellee:

Greg W. Eichelman                      Charles W. Burson
District Public Defender               Attorney General of Tennessee
   and                                        and
R. Russell Mattocks                    Georgia Blythe Felner
Assistant Public Defender              Assistant Attorney General of Tennessee
1609 College Park Drive, Box 11        450 James Robertson Parkway
Morristown, TN 37813-1618              Nashville, TN 37243-0493

                                       C. Berkeley Bell, Jr.
                                       District Attorney General
                                       113J W. Church Street
                                       Greeneville, TN 37743
                                               and
                                       Douglas Godbee
                                       Assistant District Attorney General
                                       Hawkins County Courthouse
                                       Rogersville, TN 37857




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Timmy Lynn Castle, was convicted by a jury in the Hawkins

County Criminal Court for driving without a valid driver’s license, a Class B misdemeanor.

The trial court sentenced the defendant to six months in the county jail to serve seventy-

five percent before being eligible for release. The trial court also imposed a fine of five

hundred dollars. In this appeal as of right, the defendant contends that the trial court

improperly considered enhancement and mitigating factors in sentencing him to the

maximum sentence. We disagree and affirm the trial court’s judgment of conviction.



              The proof at trial showed that the defendant was stopped by Officer Chris

Jones of the Mount Carmel Police Department on November 3, 1995, for speeding. The

defendant was driving sixty-one miles per hour in a forty-five-miles-per-hour speed zone.

The defendant did not have a driver’s license in his possession. Officer Jones’ check of

the defendant’s driving history revealed that the defendant did not have a valid driver’s

license. The defendant admitted at trial that he understood that it was against the law to

drive without a driver’s license but that he never took the test to obtain a license and drove

anyway.



              The specific data report reflects that the defendant has six prior convictions

for offenses including driving on a revoked or suspended license and driving without a valid

driver’s licence. The defendant’s prior criminal history also includes convictions for public

intoxication, possession of marijuana, driving under the influence, leaving the scene of an

accident, several traffic violations, and seven counts of burglary. The defendant also has

convictions as a juvenile for criminal trespass. The report also shows that, while on

probation, the defendant committed the offenses of speeding and driving on a suspended

license in April 1992 and the offenses of failing to yield and driving on a revoked license

in November 1994. Also, the defendant was charged and convicted of driving on a


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revoked license while on bond for the present case. The report further states that the

defendant has a history of alcohol abuse.



              In sentencing the defendant to the maximum sentence of six months in the

county jail with a seventy-five percent release eligibility, the trial court considered three

enhancement factors and determined that each should be given great weight:

              (1) the defendant has a previous history of criminal convictions
              or criminal behavior;

              (2) the defendant has a previous history of unwillingness to
              comply with the conditions of a sentence involving release in
              the community; and

              (3) the crime was committed under circumstances under which
              the potential for bodily injury to a victim was great.

See T.C.A. § 40-35-114(1), (8) and (16). In applying factor (16), the trial court stated:

              Certainly you can drive without a valid license, without
              speeding; but when you add speeding to it, it certainly creates
              a danger to people on the highway. And speeding is probably
              one of the greatest cause[s] of death and injury that we have
              in this country . . . .

The trial court found that no mitigating factors applied. In its decision, the trial court

stated that it considered the sentencing purposes and principles under the act and

found the defendant’s lack of potential for rehabilitation to be a significant factor in its

decision to deny alternative sentencing and to impose the maximum sentence. The

court stated that it denied probation because of the defendant’s prior criminal record,

his inability to abide by conditions of release, and his commission of offenses while on

bond for the present offense. It also noted that the defendant had been given many

opportunities to change but had continued to violate the law.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)

and -402(d). As the Sentencing Commission Comments to these sections note, the

burden is now on the appealing party to show that the sentencing is improper. This



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means that if the trial court followed the statutory sentencing procedure, made findings

of fact that are adequately supported in the record, and gave due consideration and

proper weight to the factors and principles that are relevant to sentencing under the

1989 Sentencing Act, we may not disturb the sentence even if a different result were

preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              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 this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. §§ 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory, but the trial court is required to allow the parties a reasonable opportunity to

be heard on the question of length of the sentence and the manner in which it is to be



                                             4
served. T.C.A. § 40-35-302(a); State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995).

The sentence must be specific and consistent with the purposes and principles of the

Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(b); Palmer, 902 S.W.2d

at 393. A percentage of not greater than seventy-five percent of the sentence should

be fixed for service, after which the defendant becomes eligible for “work release,

furlough, trusty status and related rehabilitative programs.” T.C.A. § 40-35-302(b).



              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),

although the sentence imposed should be the least severe measure necessary to

achieve the sentencing purpose. See T.C.A. § 40-35-103(4). However, in determining

the percentage of the sentence to be served in actual confinement, the court must

consider enhancement and mitigating factors as well as the purposes and principles of

the Criminal Sentencing Reform Act of 1989. T.C.A. § 40-35-302(d); Palmer, 902

S.W.2d at 393. The court should not impose such percentages arbitrarily. T.C.A. § 40-

35-302(d).



              On appeal, the defendant asserts that the trial court erroneously applied

enhancement factors in its sentencing decision. Although he admits that factor (1)

applies to some degree, he contends that the extent of the convictions and the nature

of the offenses do not warrant the weight given to the factor by the trial court. However,

the weight to be afforded an existing factor is left to the trial court’s discretion as long as

it complies with the purposes and principles of the 1989 Sentencing Act and its findings

are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Commission

Comments; Ashby, 823 S.W.2d at 169; Moss, 727 S.W.2d at 237. The proof shows

that the defendant has at least six convictions relating to his driving without a license.

He also has several other convictions for driving-related offenses as well as felony

convictions for seven counts of burglary. The trial court’s application of the factor and



                                              5
its decision to give it great weight are overwhelmingly supported by the record in this

case.



              The defendant also claims that the trial court erred by considering factor

(8), a previous history of unwillingness to comply with conditions of a sentence involving

release into the community. We disagree. The evidence shows that the defendant

committed at least four driving-related offenses while on probation. Moreover, a thirty-

day sentence imposed in 1991 was suspended upon condition that he apply for a

driver’s license. However, the defendant testified at the trial that he had never taken

the test for his driver’s license. Under these circumstances, we hold that factor (8)

applied and that the trial court was entitled to give it substantial weight.



              Next, the defendant contends that the record does not support the

application of factor (16), the commission of the crime under circumstances under

which the potential for bodily injury to a victim is great. We are inclined to agree under

the circumstances in this case. Officer Jones testified that he observed the defendant

driving sixteen miles over a forty-five mile speed limit. However, he admitted that he did

not observe any other problem with the defendant’s driving. Also, there was no

evidence that there were any other cars on the road at the time of the offense. We do

not believe that speeding, alone, warrants the factor’s application in the context of this

case. Other than through mere speculation, there are insufficient facts to demonstrate

that a great potential for bodily injury to a “victim” resulted from the defendant’s driving

without a license. Therefore, the trial court should not have considered factor (16) in its

sentencing decision.



              The defendant also claims that the trial court should have considered his

cooperation and admission of guilt as an applicable mitigating factor. See T.C.A. § 40-

35-113(13). As the state correctly points out, though, the defendant pled not guilty to



                                              6
the crime and demanded a jury trial. In any event, the fact that he admitted in his

testimony that he drove without a license is insignificant in the context of his testimony

that he never applied for, or had, a driver’s license.



              Despite the trial court’s inappropriate use of factor (16), the other

applicable enhancement factors justify the sentence imposed by the trial court under

the circumstances presented in this case. In fact, the record indicates that the

defendant’s low potential for rehabilitation borders on incorrigibility. For these reasons,

we hold that the defendant has failed to establish that the sentence imposed by the trial

court was improper.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction of the trial court is affirmed.




                                                    Joseph M. Tipton, Judge




CONCUR:




Joe B. Jones, Presiding Judge




Curwood Witt, Judge




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