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State v. Wright10/29/1999
The Defendant, James Clifford Wright, pled guilty to second offense DUI relating to an incident which occurred in February, 1997. Two months later, he was convicted of second offense DUI following a jury trial for an offense which occurred in December, 1996. After the guilty plea and the jury trial, but prior to sentencing, his present counsel on appeal was allowed to be substituted for his retained trial counsel on the two cases. There was a consolidated sentencing hearing on October 30, 1998, and the trial court imposed a sentence of eleven (11) months and twenty-nine (29) days on each conviction, with ninety (90) days incarceration on each conviction followed by the balance of the sentence on probation. Also, the trial court ordered the sentences to be served consecutively. Defendant appeals, raising the following issues:
1) whether the length of each sentence is excessive; and
2) whether consecutive sentencing is appropriate. After a review of the record, we affirm the judgment of the trial court.
I. FACTS
We note initially that while there is a transcript of the sentencing hearing in the record, there is no trial transcript or statement of the evidence regarding either the trial on the December, 1996 offense or the guilty plea hearing regarding the February, 1997 incident. A complete record on appeal is necessary for adequate appellate review of sentences imposed by the trial court. State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The trial court's ruling is presumed correct in the absence of a complete record on appeal. Id.
In consideration of the above constraints, we will nevertheless review this case with the information available in the record.
On December 1, 1996, law enforcement officers discovered Defendant in control of a vehicle while he had slurred speech and the odor of an intoxicant on his breath. Defendant subsequently failed a field sobriety test and he refused to submit to an intoximeter test.
On February 2, 1997, law enforcement officers discovered Defendant standing next to his vehicle that was parked in a highway median. The officers also observed that Defendant smelled of alcohol, had slurred speech, had bloodshot eyes, and was unsteady on his feet. Defendant subsequently submitted to an intoximeter test and the results indicated that Defendant had a blood alcohol level of .16%.
II. LENGTH OF SENTENCES
Defendant contends that the trial court imposed sentences of excessive length. We disagree.
The burden is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) (1997) (Sentencing Commission Comments). Ordinarily, a trial court is required to make specific findings on the record with regard to sentencing determinations. See Tenn. Code Ann. §§ 40-35-209(c), -210(f) (1997 & Supp. 1998). However, the Tennessee Supreme Court has stated that review of misdemeanor sentencing is de novo with a presumption of correctness even if the trial court did not make specific findings of fact on the record because "a trial court need only consider the principles of sentencing and enhancement and mitigating factors in order to comply with the legislative mandates of the misdemeanor sentencing statute." Troutman, 979 S.W.2d 274.
Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302, which provides that the trial court shall impose a specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. See State v. Palmer, 902 S.W.2d 391, 392 (Tenn. 1995). A defendant convicted of a misdemeanor, unlike a defendant convicted of a felony, is not
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