         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 5, 2002

              STATE OF TENNESSEE v. JOHN RICHENBERGER

                      Appeal from the Criminal Court for Shelby County
                         No. 01-07805    John P. Colton, Jr., Judge



                  No. W2002-01788-CCA-R3-CD - Filed February 12, 2003


The defendant, John Richenberger, entered a plea of guilt to driving under the influence, fourth
offense, a Class E felony. The trial court imposed a Range I jail sentence of one year, requiring a
mandatory minimum of 150 days' service. There was a $3,000.00 fine. In this appeal, the defendant
argues that the trial court erred by failing to order a sentence in the community corrections program.
The judgment is affirmed and the cause remanded for consideration of correction of the length of the
sentence.

         Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.

Jeffrey Jones, Bartlett, Tennessee, for the appellant, John Richenberger.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William L. Gibbons, District Attorney General; and Tom Hoover, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The indictment alleged that on March 20, 2001, the defendant, while under the influence of
an intoxicant, operated a motor vehicle on a public highway in Shelby County. See Tenn. Code Ann.
§ 55-10-401 (1998). The indictment also charged that the defendant had been convicted of driving
under the influence on three prior occasions. Each of the prior three convictions was dated October
6, 1997. A 1998 amendment to the statute regarding penalties for driving under the influence
convictions had established that a fourth offense qualified as a Class E felony. See Tenn. Code Ann.
§ 55-10-403(a)(1) (1998); State v. Janice Carol Biskner, No. E2000-01440-CCA-R3-CD (Tenn.
Crim. App., at Knoxville, Nov. 13, 2001) (holding that the statute creating a Class E felony for
fourth offense driving under the influence does not violate the constitutional prohibition against ex
post facto laws).
       In a pre-trial motion, the defendant argued that he was eligible for community corrections
even though probation, due to statutory constraints, was admittedly not an alternative. The driving
under the influence sentencing statute, in pertinent part, provides as follows:

       Notwithstanding any other provision of law to the contrary, the fourth or subsequent
       conviction shall be a Class E felony punishable by a fine of not less than three
       thousand dollars ($3,000) nor more than fifteen thousand dollars ($15,000); by
       confinement for not less than one hundred fifty (150) consecutive days, to be served
       day for day, nor more than the maximum punishment authorized for the appropriate
       range of a Class E felony; and the court shall prohibit the person from driving a
       motor vehicle for a period of five (5) years. For the provisions of the preceding
       sentence to apply, at least one (1) of the violations of § 55-10-401 must occur on or
       after July 1, 1998. . . .

Tenn. Code Ann. § 55-10-403(a)(1) (1998).

           The trial court ruled that the defendant was ineligible for community corrections. It based
its holding on the provisions of the statute directing confinement in a county jail or workhouse for
a conviction for first, second, or third offense DUI. While acknowledging that there was no such
statutory language for the felony offense of driving under the influence, the trial court determined
that "it is inconceivable that the legislature could have intended that only those convicted of lesser
DUI's would be remanded to the county jail or workhouse." The trial court also observed that a
conviction for a second offense for driving under the influence authorized an "inpatient alcohol or
drug treatment program" for up to 28 days but required "the remainder of the confinement imposed
. . . in the county jail or workhouse." See Tenn. Code Ann. § 55-10-403(a)(4)(A) (1998). After the
entry of the guilty plea, the trial court imposed the sentence at issue.

        In this appeal, the defendant, without further comment, concedes that the sentence should
have been two years but argues that he should have been granted the opportunity of a community
corrections program. The state did not address the length-of-sentence issue and the record on appeal
does not include the prior criminal record of the defendant for range determination purposes. See
Tenn. Code Ann. §§ 40-35-105, -106, -112. As a Range I offender, the defendant would qualify for
a sentence not less than one year nor more than two. See Tenn. Code Ann. § 40-35-112(a). As a
Range II offender, the sentence would be from two to four years. See Tenn. Code Ann. § 40-35-
112(b). The state does submit that the plain language of Tennessee Code Annotated section 55-10-
403(a)(1) mandates "confinement for not less than one hundred fifty (150) consecutive days, to be
served day for day, nor more than the maximum punishment authorized for the appropriate range of
a Class E felony." (Emphasis added.) It contends that Tennessee Code Annotated section 40-35-
104(c), which lists sentencing alternatives to incarceration, refers to "confinement" as a term served
in the local jail or the local workhouse, thereby precluding treatment under the community
corrections program.




                                                 -2-
        In matters of statutory construction the role of this court is to ascertain and give effect to the
intent of the legislature. State v. Williams, 623 S.W.2d 121, 124 (Tenn. Crim. App. 1981). The
meaning of a statute is to be determined not from specific words in a single sentence or section but
from the act in its entirety in light of the general purpose of the legislation; any interpretations should
express the intent and purpose of the legislation. National Gas Distrib., Inc. v. State, 804 S.W.2d
66, 67 (Tenn. 1991); Loftin v. Langsdon, 813 S.W.2d 475, 478-79 (Tenn. Ct. App. 1991).

           Tennessee Code Annotated section 55-10-403(m) provides that the 1989 Criminal Sentencing
Reform Act "shall [not] be construed as altering, amending or decreasing the penalties established
. . . for the offense of driving under the influence of an intoxicant." In State v. Palmer, 902 S.W.2d
391, 394 (Tenn. 1995), our supreme court ruled that Tennessee Code Annotated section 40-35-302,
a part of the 1989 Act, had no application because of its "potential to alter or decrease the mandatory
minimum and maximum penalty provisions for DUI." Our high court determined that the terms of
the earlier Reform Act "may not operate to reduce the mandatory minimum sentencing provisions
of the DUI statute." Id. Later, in State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998), our
supreme court declared Tennessee Code Annotated section 40-35-210(f), a part of the 1989 Act,
"clearly inapplicable to DUI sentencing." The same rationale, in our view, would apply to the
Community Corrections Act of 1985. That is, the plain terms of section 55-10-403(a) would prevail
over a previously enacted alternative sentence which could serve to reduce the mandatory minimum
term of confinement. Furthermore, even if the defendant qualified for a community corrections
program, the record is inadequate for any grant of relief. The record does not include a pre-
sentencing report. There is no transcript of any sentencing hearing. It was the defendant's
responsibility to include a complete record on appeal. State v. Ballard, 855 S.W.2d 557, 560 (Tenn.
1993). In the absence of an adequate record, the trial court ruling is presumptively correct. State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

        That the defendant concedes that his minimum possible sentence is two years implies that
he has a prior criminal record. One may qualify as a "multiple offender" for Range II punishment
by having:

        (1)     A minimum of two (2) but not more than four (4) prior felony convictions
                within the conviction class, a higher class, or within the next two (2) lower
                felony classes where applicable; or

        (2)     One (1) Class A prior felony conviction if the defendant's conviction offense
                is a Class A or B felony.

Tenn. Code Ann. § 40-35-106(a). For a Class E felony, the sentence can be no less than two nor
more than four years when the defendant qualifies as a Range II offender. Tenn. Code Ann. § 40-35-
112(b)(5).

        The Sentencing Commission Comments to Tennessee Code Annotated section 40-35-106
establish that the trial judge has a duty to designate the defendant as a multiple offender when he has


                                                   -3-
the required number of prior convictions. Tenn. Code Ann. § 40-35-106, Sentencing Commission
Comments. A sentence in direct contravention of a statute is illegal and can be set aside at anytime,
even after the judgment has become final. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).
An increase in the classification from Range I to Range II would ordinarily be a legitimate function
of the appellate court. State v. Russell, 800 S.W.2d 169, 173 (Tenn. 1990). Tennessee Code
Annotated section 40-35-106(c) provides that "[a] defendant who is found . . . beyond a reasonable
doubt to be a multiple offender shall receive a sentence within Range II." Because this court cannot
ascertain the appropriate range, the cause must be remanded to the trial court for any correction of
sentence that may be warranted. Otherwise, the judgment is affirmed. The costs are adjudged
against the defendant.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




                                                -4-
