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State v. Richenberger2/12/2003
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, n
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