State v. Bette J. Watson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JUNE SESSION, 1998 FILED
August 18, 1998
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9707-CC-00279
Appellee )
) WILLIAMSON COUNTY
vs. )
) Hon. DONALD P. HARRIS, Judge
BETTE J. WATSON, )
) (Sentencing)
Appellant )
For the Appellant: For the Appellee:
James Robin McKinney, Jr. John Knox Walkup
One Washington Square Attorney General and Reporter
Suite 103
Nashville, TN 37201 Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Joseph D. Baugh, Jr.
District Attorney General
Derek Smith
Asst. District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Bette J. Watson, was indicted by a Franklin County Grand
Jury for the offenses of driving under the influence, second offense, and driving on a
revoked license, second offense. Pursuant to a plea agreement, the appellant pled
guilty to each of the indicted charges with the sentences to be determined by the
trial court. Following a sentencing hearing, the trial court imposed concurrent sixty
day periods of incarceration for DUI, second offense, and driving on a revoked
license, second offense. The appellant appeals this sentencing decision contending
(1) that the court erred by refusing to allow jail credit for her voluntary participation
in a private inpatient alcohol treatment program and (2) that she should have
received the minimum sentence of forty-five days. 1
After review, we affirm.
BACKGROUND
At approximately 3:45 p.m. on August 17, 1996, the appellant, while driving
through a residential neighborhood, left the paved portion of the street, striking
mailboxes and finally hitting a neighbor’s parked car. Numerous children lived in
this area and routinely rode their bicycles upon the streets. Following the
appellant’s arrest on this date, her blood alcohol content level was .30 percent.
1
It is unclear from the record whether the appellant’s appeal involves only her DUI
sentence or encompasses both the DUI sentence and driving on a revoked license sentence. Her
brief alludes only to the DUI sentence. Clearly, her first issue is applicable only to a DUI
conviction. DUI, second offense, and driving on a revoked license, second offense, as pled to by
the a ppe llant, b oth re quire min imu m m and atory f orty-fiv e day p eriod s of c onfin em ent. T hus , little
solace would be provided if, in fact, the relief sought from the DUI sentence was granted since the
appellan t would rem ain incarc erated o n the driving on revok ed licens e convic tion. See Tenn.
Code Ann. § 55-50-504(a)(2) (1996 Supp.); Tenn. Code Ann. § 55-10-403(a)(1)(1996 Supp.). For
this reason, we elect review of both sentences.
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On October 29, 1996, before entering guilty pleas, the appellant voluntarily
entered the New Life Lodge, a residential alcohol and drug treatment center in
Burns, Tennessee. She successfully completed the inpatient program and was
discharged approximately three weeks later. These offenses occurred
approximately one month after the probationary period for her previous DUI
conviction had expired. On the date of these offenses, the appellant was driving on
a restricted motor vehicle operator’s license.2 The proof at the hearing established
that the appellant was fifty-five years old and a widow. Based upon these facts, the
trial court imposed concurrent sentences of six months for both second offense
convictions for DUI and driving on a revoked license, with all time suspended except
for sixty days which was to be served in the Williamson County Workhouse. The
court further ordered the appellant to be placed on supervised probation for 11
months 29 days, revoked the appellant’s driver’s license for two years, and fined the
appellant $600 for the charge of driving under the influence, second offense.
Analysis
The appellant first contends that she should be given jail credit for time
voluntarily spent in an alcohol treatment facility. She argues that “the public policy
of the State of Tennessee should be such that it would encourage a defendant to
immediately seek treatment for the welfare of the Defendant, as well as, the citizens
of the State of Tennessee.” This identical issue was addressed in State v. Morrow,
778 S.W.2d 63, 65 (Tenn. Crim. App. 1989). In Morrow, this court found that “no
2
The reco rd do es no t refle ct ho w the appe llant w as in p oss ess ion of a res tricte d licen se in
view of her prior conviction for driving on a revoked license or how the appellant was convicted of
driving on a revoked license, second offense, when the appellant was in possession of a restricted
license. See Tenn. Code A nn. § 55-10-403(d)(1).
This apparent inconsistency and the absence of other areas of proof relating to the factual
basis for the two guilty pleas were occasioned by the appellant’s failure to include a transcript of
the guilty plea he aring in the re cord. De novo review requires us to review the same facts and
circumstances of the criminal conduct involved as was reviewed by the trial court. Because the
guilty plea hea ring was not include d in the rec ords, ou r review of the facts is not from a com plete
record. The appellant mu st prepare a transcript of the evidence as is necess ary to convey a fair,
acc urate , and com plete acc oun t of wh at tran spire d with resp ect to thos e issu es th at are the b asis
of the appeal. Tenn. R. App. P. 24(b).
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statute authoriz[es] jail credit when the defendant voluntarily enters a privately
operated residential alcohol treatment facility. . . .[T]he defendant’s argument that
jail credits for any time spent in an in-house treatment facility is more appropriately
addressed to the legislature.” See also State v. Green, No. 03C01-9502-CR-00057
(Tenn. Crim. App. at Knoxville, Oct. 26, 1995), perm. to appeal denied, (Tenn. Apr.
8, 1996); State v. Johnson, No. 02C01-9103-CR-00048 (Tenn. Crim. App. at
Jackson, Dec. 12, 1991). Because the appellant’s participation in the inpatient
treatment program was not “court ordered,” the appellant cannot receive credit for
the time she spent at New Life Lodge. Tenn. Code Ann. § 55-10-403(a)(4)(A).
This issue is without merit.
The appellant next asserts that the trial court imposed excessive sentences
for her convictions. She states that she “simply wants to be allowed to serve the
minimum [45 day] sentence.” When an appellant complains of their sentence on
appeal, this court conducts a de novo review coupled with a presumption that the
trial court’s sentencing determinations are correct. Tenn. Code Ann. § 40-35-210(d)
(1995 Supp.). However, this presumption is conditioned upon an affirmative
showing that the trial court considered the relevant sentencing principles and all
pertinent facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). Regardless of whether the presumption of correctness is applied, the burden
of showing the impropriety of the sentence is on the appealing party. Sentencing
Commission Comments, Tenn. Code Ann. § 40-35-401 (1990).
Misdemeanor sentencing is governed by Tenn. Code Ann. § 40-35-302 (1996
Supp.). Although otherwise entitled to the same considerations under the
Sentencing Reform Act of 1989, unlike a felon, a misdemeanant is not entitled to the
presumption of a minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133
(Tenn. Crim. App. 1995) (citation omitted); State v. Warren, No. 01C01-9605-CC-
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00218 (Tenn. Crim. App. at Nashville, May 21, 1997) (citation omitted). Moreover,
as a sentencing hearing is not mandatory, see Tenn. Code Ann. § 40-35-202
(1990), trial courts are not required to explicitly place their findings on the record.
See State v. McKnight, No. 01C01-9509-CC-00313 (Tenn. Crim. App. at Nashville,
June 11, 1996), perm. to appeal denied, (Tenn. Jan. 6, 1997); see also State v.
Troutman, No. 03C01-9509-CC-00287 (Tenn. Crim. App. at Knoxville, Nov. 6,
1996), perm. to appeal granted, (Tenn. May 5, 1997) (Hayes, J. dissenting).
Additionally, we recognize that a misdemeanor sentence, as opposed to a felony
sentence, contains no sentence range. See Troutman, No. 03C01-9509-CC-00287
(Hayes, J. dissenting). Accordingly, in misdemeanor cases, the trial judge, who is
able to observe first-hand the demeanor and responses of the defendant while
testifying must be granted discretion in arriving at the appropriate sentence.
In sum, the sentencing court should examine the misdemeanor offense in the light
and character of the circumstances of the offense as well as under the mandated
sentencing principles. State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim.
App. at Knoxville, Apr. 3, 1996), perm. to appeal denied, (Tenn. Nov. 4, 1996) (citing
State v. Gilboy, 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993)).
In this case, the trial court found that the appellant’s conduct was
“aggravated,” noting her high blood alcohol concentration, the fact that she drove on
a restricted license, and that the offense occurred in a neighborhood at a time when
children were likely to be present. We find, upon de novo review, that these facts
are amply supported by the record. Moreover, we conclude that the trial court’s
imposition of concurrent sixty day periods of incarceration for each of her two
convictions is justified and in conformity with the principles of sentencing. The
judgment of the trial court is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
JOHN H. PEAY, Judge
________________________________
JOSEPH M. TIPTON, Judge
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