         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 14, 2004

              STATE OF TENNESSEE v. ROBBIE CHET WALLEY

                   Direct Appeal from the Circuit Court for Obion County
                            No. 3-434   William B. Acree, Judge



                   No. W2003-02987-CCA-R3-CD - Filed October 7, 2004


The defendant, Robbie Chet Walley, was convicted of possession of drug paraphernalia and was
sentenced to eleven months, twenty-nine days, all suspended except for sixty days. On appeal, he
argues that the trial court erred in denying alternative sentencing. Based upon our review, we affirm
the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

James T. Powell, Union City, Tennessee, for the appellant, Robbie Chet Walley.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       The defendant pled guilty to possession of drug paraphernalia in the Obion County General
Sessions Court and was sentenced to eleven months, twenty-nine days, with all but thirty days
suspended. He then appealed this sentence to the Obion County Circuit Court, and a sentencing
hearing was held on December 12, 2003.

        At the hearing, Deputy Brian Osborne of the Obion County Sheriff’s Department testified
that he responded to a call at the defendant’s residence on August 26, 2003. The defendant had
called the sheriff’s office and reported that an intruder was trying to break in and had taken his
girlfriend’s three-year-old child. When Deputy Osborne arrived at the residence, the defendant, who
appeared to be in a “hallucinogenic state,” was outside talking to two other officers. The defendant
told Osborne that “Jerry Sherrill was trying to climb through the windows of the house and up
through the air conditioner ducts of the house.” Osborne went inside the house where he found a
naked three-year-old boy lying in the hallway near a bathroom. He later determined that the boy was
the child of the defendant’s girlfriend, Crissy Little.1 Osborne also found a hypodermic needle on
top of the shower stall in the bathroom. The defendant told the officers that he had “injected
cocaine.” After the defendant’s grandmother arrived at the house, she told Osborne she had no
knowledge of the needle and “it didn’t belong to her house.” Osborne said that the defendant was
charged with possession of drug paraphernalia and child neglect.2

        Crissy Walley, the defendant’s wife, testified that she and the defendant had been married
one month and that she was pregnant with the defendant’s baby. She said the three-year-old boy,
who was found on the floor the day of the defendant’s arrest, was her son and that the defendant was
babysitting him while she worked. She said her son was not harmed in any way that day. She said
that Jeremy Menees had vandalized their house in the past.

        The defendant testified that he called the police the day of his arrest because someone shot
through the back window of the house. He told the police that Jeremy Menees might have done the
shooting, but he never said anything about Jerry Sherrill. He also told the police that someone was
trying to break in the house, but denied saying the intruder was in the duct work. The defendant said
that when the officers arrived “they started focusing on me, you know, like, ‘Something’s wrong
with you.’” He tried to show the window to the officers, but they would not look at it. He informed
the officers that a three-year-old child was in the house. The defendant said the child was asleep in
the floor without his pants on because he had spilled milk on them, and the defendant had put the
pants in the dryer. The defendant denied telling the officers that he had injected cocaine. Asked
about the hypodermic needle found in the house, the defendant explained that a nurse who came to
the house to give his grandfather B12 shots must have left it there.

         The defendant said he pled guilty to the child neglect charge because his attorney told him
it was in his best interest to do so. He further said he pled guilty to the instant offense because his
attorney told him he would receive probation if he did so. He said he was “shocked” at the sentence
he received. The defendant said he and his wife planned to move to Nashville in order for him to
start electronics and underwater welding school in January 2004. He said if he were incarcerated he
would have to wait until March or April to start school. The defendant acknowledged that he had
prior convictions for DUI and vandalism but said the convictions occurred eight years ago when he
was eighteen years old.

       Ruby McDaniel, the defendant’s grandmother, testified that her husband did receive monthly
B12 shots at the house. She said she was in the bathroom with Deputy Osborne when he found the
needle on top of the shower. To her knowledge, the defendant had never used a needle to inject any


       1
           By the time of the defendant’s sentencing hearing, Ms. Little and the defendant had married.

       2
           The defendant was convicted of child neglect in the Obion County Juvenile Court on November 4, 2003.

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type of drug. On cross-examination, Mrs. McDaniel said that her husband had been in a nursing
home for about six months. Asked if that meant her husband had been admitted to the nursing home
in June 2003, before the instant offense occurred in August, Mrs. McDaniel said, “I don’t – I
couldn’t tell you.”

        At the conclusion of the hearing, the trial court found that the defendant had shown no
remorse and had been untruthful in his testimony. Applying enhancement factor (1), Tenn. Code
Ann. § 40-35-114(1) (1997), the trial court sentenced the defendant to eleven months, twenty-nine
days in the county jail, all suspended except for sixty days.

                                            ANALYSIS

       The defendant argues that the trial court erred in denying alternative sentencing and “by using
an enhancement factor solely for the purpose of punishing the defendant for statements made by the
defendant during the sentencing hearing.”

         When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record 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)
(2003). This presumption 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). The presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this court is required to give great weight to
the trial court's determination of controverted facts as the trial court's determination of these facts
is predicated upon the witnesses' demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
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 that is consistent with


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the purposes and principles of the 1989 Sentencing Reform Act. See Tenn. Code Ann. §
40-35-302(b). Although the Sentencing Reform Act typically treats misdemeanants and felons the
same, misdemeanants are not given the presumption of a minimum sentence. See State v. Seaton,
914 S.W.2d 129, 133 (Tenn. Crim. App. 1995). A separate sentencing hearing is not required in
misdemeanor sentencing, but the trial court must "allow the parties a reasonable opportunity to be
heard on the question of the length of any sentence and the manner in which the sentence is to be
served." Tenn. Code Ann. § 40-35-302(a). A misdemeanor sentence, unlike a felony sentence, has
no sentence range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        The trial court has great flexibility and discretion in fashioning a misdemeanor sentence. The
sentence must be specific and in accordance with the principles, purposes, and goals of the 1989
Sentencing Act. Tenn. Code Ann. § 40-35-302(b); State v. Palmer, 902 S.W.2d 391, 393 (Tenn.
1995). The trial court should consider enhancement and mitigating factors in making its sentencing
determinations; however, unlike the felony sentencing statute, which requires the trial court to place
its findings on the record, the misdemeanor sentencing statute "merely requires a trial judge to
consider enhancement and mitigating factors when calculating the percentage of a misdemeanor
sentence to be served in confinement." State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The
trial court is authorized to place the misdemeanant on probation either immediately or after a term
of confinement. Tenn. Code Ann. § 40-35-302(e). When a defendant challenges a misdemeanor
sentence, this court conducts a de novo review with a presumption that the trial court's
determinations are correct.

       In sentencing the defendant, the trial court stated:

               What’s bothering me, though, . . . [the defendant] has come into court
               and shown no remorse whatsoever for not only the incident for which
               he was on trial [sic] today, but also for the companion case which was
               decided in Juvenile Court. He shows no candor whatsoever, or a
               complete lack of candor. Somebody is not telling the truth.

                      Mr. Osborne came in and testified that [the defendant] was
               intoxicated, he was claiming somebody was in his air conditioning
               system. . . . He testified that the defendant admitted to him that this
               needle was his. On the other hand, [the defendant] comes in and says,
               “That’s not true. I was not intoxicated. I didn’t say anything about
               the duct work. That wasn’t my needle. I told them that.”
               Somebody’s not telling the truth.

                       [The defendant], you would have helped yourself – and the
               Court finds that the testimony of the officer, Mr. Osborne, is credible
               and yours i[s] not. It would have been much more helpful had you
               come into court and said, “That’s true. I made a mistake. I need to
               get on to Nashville.” But you come into court and everything is


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               somebody else’s fault. It’s your lawyer’s fault that you pled guilty in
               two different courts, yet you’re innocent, completely innocent, did
               nothing wrong, but you pled guilty anyway. I just don’t buy all of
               that.

                       Taking your lack of remorse and your lack of candor, you’ve
               been untruthful, enhancement factor number 1 applies. The Court
               thinks that some jail time is indicated in this case.

                      I’m going to sentence you to 11 months and 29 days in the
               county jail, to serve 60 days.

       A trial court may deny alternative sentencing and sentence a defendant to confinement based
on any one of the following considerations:

                      (A) Confinement is necessary to protect society by restraining
               a defendant who has a long history of criminal conduct;

                      (B) Confinement is necessary to avoid depreciating the
               seriousness of the offense or confinement is particularly suited to
               provide an effective deterrence to others likely to commit similar
               offenses; or

                       (C) Measures less restrictive than confinement have frequently
               or recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1) (2003).

         In determining that the defendant should serve sixty days of his sentence in confinement, the
trial court applied enhancement factor (1), Tenn. Code Ann. § 40-35-114(1) (1997), “ [t]he defendant
has a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range,” and found that the defendant had been untruthful and had shown
no remorse.

        In State v. Robert Duff and Vernita Cox, No. 02C01-9307-CR-00152, 1995 WL 390951, at
*3 (Tenn. Crim. App. June 28, 1995), perm. to appeal denied (Tenn. Nov. 6, 1995), this court noted
that “[i]n accordance with this general principle, Tennessee courts have repeatedly held that
untruthfulness is a factor which may be considered in determining the appropriateness of probation.”
(citing State v. Neeley, 678 S.W.2d 48, 49 (Tenn. 1984); State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983)). In addition, “[a]lthough untruthfulness is not mentioned as a factor in Tenn. Code
Ann. § 40-35-103(1), this court has continued to declare it a relevant factor in determining the
suitability of probation subsequent to the enactment of the 1989 Act.” Id. (citing State v. Anderson,
857 S.W.2d 571, 574 (Tenn. Crim. App. 1992)).


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         According to testimony at the sentencing hearing, the defendant had been convicted in 1997
of DUI and two counts of vandalism, all arising out of the same incident. Additionally, as the result
of his telephone call to the Obion County Sheriff’s Department, which resulted in the charge which
is the basis for this appeal, he also was charged with and convicted of child neglect. We note that
the State has argued on appeal that the trial court’s determination that the defendant should be
incarcerated for a portion of his sentence is not affected by the holding in Blakely v. Washington,
__ U.S. __, 124 S. Ct. 2531 (2004), because one of the reasons for overcoming the statutory
presumption that the defendant was a favorable candidate for probation was his prior criminal record.
 In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000), the court concluded
that the Sixth Amendment's prohibition against increasing punishment beyond the “statutory
maximum” based upon additional findings made by the trial court did not apply to “the fact of a prior
conviction.” Accordingly, as to the present appeal, we conclude that even if the trial court erred in
imposing a sixty-day period of confinement based on the court’s determination that the defendant
was not remorseful and was untruthful at the hearing, his prior criminal record supports the sentence.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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