State v. Bobby J. Young

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION 1999 FILED December 15, 1999

Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) NO.M1998-00402-CCA-R3-CD ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ROBERT BURCH BOBBY J. YOUNG, ) JUDGE ) Appe llant. ) (Direct Ap peal - D .U.I.)

FOR THE APPELLANT: FOR THE APPELLEE:

THOMAS R. MEEKS PAUL G. SUMMERS 137 Franklin Street Attorney General & Reporter Clarksville, TN 37040 (On App eal Only) LUCIAN D. GEISE Assistant Attorney General REESE BAGW ELL 425 Fifth Avenu e North 116 South Second Street Nashville, TN 37243 Clarksville, TN 37041 (At Trial Only) DAN ALSOBROOKS District Attorney General

ROBERT WILSON Assistant District Attorney Main Street Springfield, TN 37172

OPINION FILED ________________________ AFFIRMED IN PART; VACATED AND REMANDED IN PART

JERRY L. SMITH, JUDGE

OPINION

On January 7, 1997, the Dickson County Grand Jury indicted Appellant Bobby J. Young for driving under the influence of an intoxicant (“DUI”), fourth offense; driving on a revoked license (“DORL”), second offense; and violating the open conta iner law. Following a jury trial on May 20, 1997, Appellant was convicted of fourth offense DUI, second offense DORL, and violating the open container law. After a sentencing hearing on September 12, 1997, the trial court imposed sentences of eleven months and twenty-nine days for the fourth offense DUI conviction, eleven months and twenty-nine days for the second offense DORL conviction , and thirty days for the open container violation. In addition, the sentences for fourth offense DUI and second offense DORL were ordered to run cons ecutive ly to each other and the sentence for the open container violation was ordered to run concurrently with the other se ntence s. Appe llant challen ges bo th his convictions and his sentences, raising the following issues:

1) whether the indictment was defective; 2) whether it was unconstitutional to ask App ellant to sub mit to a bre ath analysis te st; 3) whether the trial court erred when it allowe d a po lice office r to give h is opinion a bout Ap pellant’s leve l of intoxication at the time of arrest; 4) wheth er the tr ial cou rt erred when it instructed the jury that Ap pellan t’s refusal to submit to a breath analysis test could be considered against him; 5) whether the evidence was sufficient to support Appellant’s convictions; 6) whether evidence of Appellant’s prior convictions was properly admitted into evidence; 7) whether the prior convictions used to enhance App ellant’s DUI conviction to fourth offense DUI are void on their face; 8) whether the trial court erred when it failed to instruct the jury about the State ’s burden of proving that Appellant was the same individual who was convicted of the prior DUI offenses; 9) whether the trial court properly considered convictions listed in the presen tence re port whe n it senten ced Ap pellant; 10) whether the trial court imposed excessive sentences; and 11) whether the trial cou rt erred when it imposed consecutive sentencing.

-2-After a review of the record, we affirm the judgment of the trial court in part and vacate th e judgm ent in part.

I. FACTS

On November 4, 1998, Appellant filed a motion in which he aske d this Court to acce pt an a ttache d state men t of facts in lieu of a properly filed record. On Nove mbe r 19, 19 98, this Court denied the motion and ordered Appella nt to either have the trial transcripts prepared and filed as a sup plem ental re cord o r file a statement of the evidence and a motion to supplement the record with the trial court pursuant to Rule 24(c) of the Tennessee Rules of Appellate Procedure. Desp ite this Court’s express directions, Appellant has failed to have the trial transcripts filed as a supplemental record and has failed to file a statement of evidence in the trial court pursuant to R ule 24(c).

Because of Appellant’s failure to comply with this Court’s order to prop erly supplement the record, we have only a vague outline of the facts o f this case. It appears that on July 1 9, 1996 , Depu ty Derrick J ones o f the Dicks on Co unty Sher iff’s Office rec eived a re port that an intoxicated individual was driving a vehicle on Hig hway 49 ne ar Ch arlotte, T enne ssee . Depu ty Jone s sub sequ ently stopped the vehicle and observed that Appellant was the driver. W hen D eputy Jones approached the vehicle, he smelled the odor of alcohol and he saw an open can of b eer on the floo r. App ellant th en ad mitted that he had n o drive r’s license and state d that he d id not wan t to perform a field sob riety test because he was drunk.

-3-

II. SUFFICIENCY OF THE INDICTMENT

Appe llant contends that the indictme nt in this cas e was ins ufficient to charge him w ith fourth offens e DU I and s econ d offen se DO RL. S pecifically, Appellant conten ds that the indictme nt was ins ufficient be cause it fails to com ply with the req uireme nts of Tennessee Code Annotated section 55-10-403, which states, in re levant pa rt,

In the prosecution of second or subsequent offenders, the indictment or charging instrument must allege the prior conviction or convictions for violating any of the provisions of §§ 5 5-10-401, 39 -13-213(a)(2), 39-13-106, 39-13-218 or 55-10-418 setting forth the time and place of each prior conviction or convictions. When the state uses a conviction for the offense of driving under the influence of an intoxicant, aggravated vehicular homicide, vehicular hom icide, veh icular a ssau lt or adu lt driving w hile impaired committed in another state for the purpose of enhancing the punishment for a violation of § 55-10 -401, the indictm ent or chargin g instrument must allege the time, place and state of such prior conviction.

Tenn . Code Ann. § 5 5-10-40 3(g)(2) (19 98).

Count one of the indictment in this case alleges:

That BOBBY J. YOUNG . . . on or about the 19th d ay of Ju ly, 1996 , . . . in the County of Dickson, . . . did unlawfully drive or was in physical control of an automobile on a public highway or road of the State of Tennessee, or on a st reet or alley, or w hile on the pr emise s of a shopping center, trailer park or apartme nt complex, or a ny other prem ises w hich is g enera lly frequented by the public at large, while he . . . was under the influence of an intoxicant . . . in violation of T.C.A. 55-10-401 . . . And prior to the commission of said offense . . . BOBBY J. YOUNG had previously been convicted of like offens es in the fo llowing ca ses, . . . 1. On July 29, 1991 in the General Sessions Court for Montgomery County, Clarksville, TN in case number A442 23295 9212 o f said cou rt. 2. On May 9, 1995 in the Ge neral Se ssions C ourt for Montgom ery County, Clarksville, TN in case number A174 28604 1514 o f said cou rt. 3. On July 11, 1995 in the General Sessions Court for Montgom ery County, Clarksville, TN in case number A140 29094 5217 o f said cou rt. Wh erefore the Grand Jurors afores aid . . . do indict BOBBY J. YOUNG for the 4th offense of unlawfully driving said automobile upon said pub lic highwa y while un der the influ ence [o f an intoxica nt] . . . . In addition, count two of the indictment alleges

-4-

[T]hat in the County and State aforesaid and on the date afor esaid . . . BOBBY J. YOUNG . . . did unlawfully and willfully drive a motor vehicle . . . at a time w hen the privilege . . . so to do was canceled, suspended, or revoked, becau se of a convic tion for D riving w hile Into xicated , in violation of T.C.A . 55-50-5 04 . . . And . . . prior to the commission of said offense . . . BOBBY J. YOUN G had previously been convicted of like offense in the following c ase . . . 1. On July 29 , 1991 in the General Sessions Court for Montgom ery County, Clarksville, TN in case number A442 23295 9213 o f said cou rt. Wh erefore the Grand Jurors aforesaid . . . do indict BOBBY J. YOUNG for the offense of driving on a canceled, su spen ded, o r revok ed lice nse, in violation of T .C.A. 55 -50-504 , a Class A Misde mean or . . . .

Appellant contends that counts one and two of the indictm ent fail to comp ly with the requirements of section 55-10-403(g)(2) and fail to comply with constitutional notice requirements because they identify the prior convictions as being for “like offense(s)” rather than identifying the prior convictions as being for DUI or DORL.

Initially, we note that sectio n 55-10 -403(g)( 2) has n o applica tion to indictme nts alleging th at a defendant has committed a second offense DORL. In addition, section 55-10-403(g)(2) is directory in nature, and the real question is whether the indictment is sufficient to satisfy constitutional notice requirements. See State v. Ran dy Ch appe ll, No. 02C01-9204-CC-00084, 1992 WL 368636, at *1 (Tenn. C rim. App., Jack son, Dec. 16 , 1992).

The Tennessee Supreme Cour t has s tated th at “an in dictm ent is va lid if it provides sufficient info rmation (1) to ena ble the ac cused to know the accusation to which answ er is required, (2) to furnish the court adequ ate basis for the en try of a proper ju dgme nt, and (3 ) to protect th e accu sed from double jeopard y.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted). Further, “an indictment need n ot confor m to trad itionally strict plea ding req uireme nts.” Id. “Thus, we now approach ‘attacks upon indictments, especially of this kind, from

-5-the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.’” Id. (quoting Unite d State s v. Pur vis, 580 F.2d 853, 857 (5th Cir.1978 )).

A “common sense” reading of counts one and two of the indictment indicates that they were sufficient to comply with the constitutional notice requirem ents recited in Hill. Count one of the indictment clearly informed Appellant that he was being charged with fourth offense DUI. Count one also informed Appellant of the three prior convictions that were the basis for enhancing the DUI charge in this ca se to a charg e of fou rth offen se DU I. It is clear that when the term “like offens es” is vie wed in conte xt, it is obvio usly referring to prior convictions for the same offense that Appellant was charged with in this case—DUI. Likewise, count two of the in dictment clearly informed Appellant that he w as being charge d with second offense DORL.1 Count two also informed Appellant of the prior conviction that was the basis for enhancing the DORL charge in this case to a charge of second offense DORL. It is clear that when the term “like offe nse” is viewed in con text, it is obviously referring to a prior conviction for the s ame offens e that A ppella nt was charg ed with in this case—DORL. Although co unts one an d two could ha ve been m ore precise, they clearly enabled Appellant to know the accusation to which answer was required, furnished the court with an adequate basis for the entry of a proper judgment, and protecte d Appe llant from d ouble jeo pardy. W e decline Appellant’s invitation to view the indictment from “the standpoint of petty preciosity, pettifogging,

1 Count two charges A ppellant with Class A misdem eanor DO RL. The first conviction for D ORL is a Class B misdemeanor while a second or subsequent conviction for DORL is a Class A misdemeanor. Tenn. Code Ann. § 55-50-504(a) (19 95).

-6-technica lity or hair splitting fa ult finding,” and conclude that the indictment was sufficient to comply with constitutional notice requirements. This issue has no merit.

III. REQUEST FOR A BREATH ANALYSIS TEST

Appellant contends that it is unconstitutional to ask an accu sed to subm it to a breath analysis te st becau se it forces a defen dant to either testify at trial and explain the failure to subm it to the test o r refuse to testify and have the refusal considered as evidence of guilt. However, Appellant has clearly waived this issue by failing to supp ort it with any cita tion to the re cord an d by failing to cite to any authority. Tenn. R. Ct. Crim. App. 10(b). Moreover, the Tennessee Supreme Court has he ld that requ iring an ac cused to either submit to a blood-alcohol test or have his refusal used against him at trial does not violate either the federal or state constitution s. State v. Frasier, 914 S.W .2d 46 7, 470 –73 (T enn. 1 996). T his issue ha s no m erit.

IV. OPINION TESTIMONY

Appellant contends that the trial court erred when it allowed a police officer to give his opinion about Appellant’s level of intoxication at th e time of a rrest. Howeve r, as previously mentioned, the record does not contain a trial transcript nor does it cont ain a p roper ly filed sta teme nt of the eviden ce. Th us, it is not possible for us to re view this issue. It is the d uty of the pa rty seeking appellate review to prepare a rec ord which co nveys a fa ir, accurate and complete account of what transpired with respe ct to the issu es raised by the pa rty. State v. Ballard,

-7-855 S.W .2d 557, 560 –61 (Ten n. 1993); State v. R oberts, 755 S.W.2d 833, 836 (Tenn. Crim. A pp. 198 8). Wh en the record is incom plete, a nd do es no t conta in a transcript of the proceedings relevant to an issue presen ted for r eview , this Court is preclud ed from conside ring the iss ue. State v. Matthews, 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990). Therefore, this issue is waived.

V. INSTR UCTIO N ON REFU SAL

Appellant contends tha t the trial court erred when it instructed the jury that Appe llant’s refusal to submit to a breath analysis test could be considered against him.

The re cord indic ates that th e trial court ins tructed the jury that:

In this case , the defen dant wa s reque sted to tak e a test to determ ine his blood alcoh ol con tent. T he de fenda nt refus ed to ta ke this test. A defen dant ca nnot be forced to ta ke a bloo d/alcoho l test.

When it is the sole decision of a defendant to take such a test and he refuses to do so, the jury may infer that the results would have been unfavorable to him.

Such refusal does not relieve the State of any duty to establish any fact necessary to constitute a violation of law.

Whether there was such a refusal and whether such inference has arise n is for you to decide.

Appellant con tends that the trial court erre d when it gave the above instruction because giving the instruction placed too much emphasis on the fact

-8-that he refu sed to tak e a brea th analysis test. 2 However, this Court has previously rejected this same argument and held that when there is evidence that a defendant has refused to submit to a blood alcohol test after being advised of the consequences of a refusal, the trial court should instruct the jury that it ma y conside r the refusa l as proba tive of guilt. See State v. Malc olm Flake, No. 13, 1986 WL 2866, at *3 (Tenn. Crim. App., Jackson, March 5, 1986). 3 This issu e has n o merit.

VI. SUFFICIENCY OF THE EVIDENCE

Appe llant co ntend s that th e evide nce w as insu fficient to supp ort his convictions for DU I, DORL, a nd violating the ope n container law . However, Appe llant ha s failed to sup port his one s enten ce co nclus ory arg ume nt for this issue with an y citation to the re cord o r with an y citation to auth ority. Th us, this issue is waived. T enn. R. Ct. C rim. App. 10(b ). Moreover, bec ause the rec ord does not contain a trial transcript or a properly filed statement of the evidence, we are precluded from reviewing this issue. It is the duty of the party seeking appellate review to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues raised by the party. Ballard, 855 S.W .2d at 560 –61; Robe rts, 755 S.W.2d at 836. When

2 Appellant also contends that the trial court erred when it gave this instruction because the trial court failed to inform the jury that it could choose to place no emphasis on the refusal. This contention is inaccurate. The express language of the instruction informed the jury that whether the refusal has any meaning is for the jury to decide. 3 Appellant concedes that the State introduced evidence that he refused to take a breath analysis test and that this evidence was admissible. The record also indicates that the State introduced evidence that showed that before Appellant was asked to submit to a test, he was advised of the consequences of a refusal.

-9-the record is incomplete, and does not contain a transcript of the proceedings relevant to an issue presented for review, this Court is precluded from conside ring the iss ue. Matthews, 805 S .W .2d at 7 84. Th erefor e, this iss ue is waived.

VII. ADMISSION OF PRIOR CONVICTIONS

Appellant contends that the evidence of his prior convictions was improperly admitted. Specifically, Appellant argues that this evidence was improp erly adm itted beca use it was not introdu ced thro ugh the testimon y of a proper record s custodian a nd was no t properly authen ticated. Howe ver, because the record does not contain a trial transcript or a properly filed statem ent of th e evide nce, w e are p reclud ed from review ing this issue. It is the duty of the party seeking appellate review to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issu es raised by the pa rty. Ballard, 855 S.W .2d at 560 –61; Robe rts, 755 S.W.2d at 836. When the record is incomplete, and does not contain a transc ript of the proce eding s releva nt to an issue p resen ted for r eview , this Court is p reclude d from c onside ring the iss ue. Matthews, 805 S.W .2d at 784 . Therefore, this issue is waived.

VIII. VALIDITY OF THE PRIOR DUI CONVICTIONS

-10-

Appellant contends that his conviction for DUI should not have been enhanced to fourth offense DUI because the three prior judgments of conviction upon which enhancement was based are void on their face.

First, Appellant contends that the judgments from general sessions court that indicate that he pled guilty to three prior DUI offenses are void on their face because there is no indication that they are judgments, because they do not na me Ap pellant as the pe rson convicted , and becau se they have not be en pro perly sig ned b y a judg e. Des pite Ap pellan t’s asse rtions, it is obvious from the face of the docum ents that th ey are jud gmen ts of convic tion. In addition, each judgment states that “Bobby J. Young” or “Bobby Joe Young” has been convicted of a DUI offense, each judgment indicates what sentence was impo sed, and ea ch judgm ent has bee n signed by a judge. Further, nothing indicates that the court that pronounced the judgments was without jurisdiction to do so.

Second, Appellant contends that the judgments are void on their face because the warrant section of each judgment is defective. However, each judgment indicates that Appellant entered a guilty plea while he was represented by counsel. As this Court has previously stated, “[t]he general rule is that a plea of guilty waives all non-jurisdictional defects, procedural defects, and c onstitutional infirmities.” State v. Gross, 673 S.W.2d 552, 553 (Tenn. Crim. App. 1984). Thus, Appellant waived his challenge to the alleged defects o f the warra nts by plea ding gu ilty. See id. at 554.

-11-

Third, Appellant contends that the judgments are void on their face because they fail to show: (1) that he was advised of his privilege against self-incrimination, his right to co nfront witnesses , and his right to a trial by jury as required b y Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); (2) that he was advised pursuant to State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), that a guilty plea could be used to enhance the sentence for future convictions; and (3) that the trial court followed certain procedural requirements such as ensuring that there was a factual basis for the plea and creating a verbatim record of the plea hearing. However, this Court has recently h eld that, eve n if true, non e of these allegation s would establish that a judgm ent was void on its fac e. State v. Phillip Todd Swords, No. 03C01-9807-CR-00239, 1999 WL 222702, at *6–7 (Tenn. Crim. App., Knoxville, April 14, 1999 ). Beca use th ese a llegatio ns do not es tablish that the judgm ents a re void on their face, the allegations cannot be used in this case to collaterally attack Appe llant’s prior co nvictions in order to p revent the m from being us ed to enhan ce his co nviction to fo urth offen se DU I. See id., 1999 WL 222702, at *6–7. The Post-Conviction Procedure Act is the authorized route of attack for Appe llant. See id., 1999 W L 2227 02, at *7. T his issue has no merit.

IX. FAILURE TO GIVE A SPECIFIC JURY INSTRUCTION ON IDENTITY

Appe llant co ntend s that th e trial co urt erre d whe n it failed to spe cifically instruct the jury that in order to establish that Appellant had previously been convicted of DUI offenses, the State had the burden to prove beyond a reaso nable doub t that Ap pellan t was th e sam e individ ual wh o was nam ed in

-12-the three prior judgm ents of co nviction. H oweve r, Appella nt has faile d to support his argument for this issue with any citation to the record or with any citation to au thority. Thu s, this issue is waived. T enn. R . Ct. Crim . App. 10 (b).

Notwiths tanding waiver, we conclud e that Ap pellant is no t entitled to relief even on the merits. The record indicates that during the initial phase of trial, the trial cou rt instructed the jury that:

[T]he defen dant h as no obliga tion to p resen t any ev idenc e at all, or to prove to you in an y way that h e is innoc ent. It is up to th e State to prove tha t he is guilty, an d this burd en stays on the S tate from start to finish. You m ust find the defend ant not gu ilty unless the State convinces yo u beyond a reasonab le doubt that he is g uilty. The State must prove every element of the crimes charged beyond a reaso nable d oubt. . . . . .... The State must prove beyond a reasonable doubt all of the elements of the crime charged, that the crime, if in fact committed, was comm itted by this de fendan t . . . .

The re cord also indicates that after the State intro duced the three judgm ents of conviction during the second phase of trial, the trial court instructed the jury that:

You w ill consid er whe ther or not the defen dant h as pre viously been convicted of the offense of driving under the influence of an intoxica nt and , if so, wh ether y our pre vious ve rdict in th is case was h is second offense or whether it was his third or subsequent offense. In so doing, you will use the principles explained to you in the previous charge. .... If from all of the evidence and the court’s charge you find that no prior offens e has b een pro ved or if you have rea sonab le doub t as to wheth er any offens e has been prove d, you w ill find tha t the de fenda nt is guilty on his first offense o f DUI.

In this case, the trial court clearly informed the jury that the State had the burden of proving every element of the charged crimes beyond a

-13-reasonable doubt. Thus, the jury was clearly aware that in order to prove that Appellant had prior convictions for DUI, the State had to establish beyond a reasonable doubt that Appellant was the person who was named in the prior judgm ents of co nviction. T his issue has no merit.

X. USE OF THE PRESENTENCE REPORT

Appellant contends that the trial court erred when it considered conviction s listed in the presen tence re port whe n it senten ced Ap pellant.

First, Appellant argu es that the prese ntence repo rt should not have been admitted into evidence because there was no proof that the report was accurate and because Appellant’s counsel was prevented from questioning the probation o fficer who prepa red the report ab out its accuracy. H owever, the record indicates that when the State offered the presentence report for admission into evidence, Ap pellant mad e no objection whatsoeve r. Further, the reco rd indicate s that Ap pellant’s co unsel w as given the opp ortunity to cross -exam ine the proba tion offic er and coun sel ne ver ask ed a s ingle question that challenged the accuracy of the report. By failing to object to the introduction of the presentence report, Appellant clearly waived any challenge to its introduc tion or to its ac curacy. See Tenn. R . App. P. 36(a).

Second, Appellant contends that the presentence report should not have been considered by the trial court because it listed offenses that Appellant was charged with that did not result in convictions and included

-14-convic tions th at were over te n year s old. H owev er, the tr ial cou rt expre ssly stated that it would not consider any charged offense that did not result in a conviction and w ould not cons ider any conviction tha t was more than ten years old. This is sue ha s no m erit.

XI. LENGTH OF SENTENCES

Appellant con tends that the trial court erro neously imp osed exce ssive sentences for all three of his convictions.

This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is conditioned upon an affirmative showing in the record that the trial judge considered the sentencing principles and all relevant facts and circums tances . State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). The burd en is upon the appealing pa rty to show that the se ntence is imp roper. Tenn. Code Ann. § 40-35-401(d) (1997) (Sentencing Commission Comments). Ordinarily, a trial court is required to make specific findings on the reco rd with reg ard to se ntencing determ inations. See Tenn. Code Ann. §§ 40-35- 2 09(c), 40 -35-210 (f) (1997 & Supp. 1 998). Ho wever, w ith regard to misdemeanor sentencing, 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 enha nceme nt and mitigating fa ctors in order to com ply with the legislative

-15-manda tes of the misde meano r sentencing s tatute.” State v. Troutman, 979 S.W .2d 271, 274 (Tenn. 199 8).

Misdemeanor sentencing is controlled by Tennessee Code Annotated sectio n 40-3 5-302 , which provid es tha t the trial c ourt sh all imp ose a spec ific sentence consistent with the purposes and principles of the 1989 Criminal Senten cing Re form A ct. 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 n ot entitled to a presum ption of a m inimum senten ce. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Misdemeanor sentences do not contain ranges of punishments, and a misdemeanor defendant may be sentenced to the maximum term provided for the offense as long as the sentence imposed is consistent with the purposes of the senten cing act. Palmer, 902 S.W.2d at 393.

In this case, Appellant was convicted of fourth offense DUI, which was a Class A misde mean or at the tim e of the offe nse. See Tenn . Code Ann. § 55-10-4 03(m) (1995). U nder the applicab le statute in e ffect at the tim e, a defendant convicted of fourth offense DUI was to be confined “for not less than one hundred twenty (120) days nor more than eleven (11) months and twenty-nin e (29) da ys.” Ten n. Cod e Ann. § 55-10-4 03(a)(1) (1995). Furtherm ore, “all pers ons se ntence d unde r subse ction (a) sh all, in addition to the service of at least the minimum sentence, be required to serve the difference between the time actually served and the maximum sentence on probatio n.” Ten n. Cod e Ann. § 55-10-4 03(c) (19 95). In effec t, the DU I statute

-16-mandates a maximum sentence for a DUI conviction with the only function of the trial court being to determine what period above the minimum period of incarcer ation esta blished b y statute, if an y, is to be se rved in co nfinem ent. See Troutman, 979 S.W.2d at 273. Appellant was also convicted of second offense DOR L, which is a Class A misd emea nor. See Tenn. Code Ann. § 55-50-504(a)(2) (1995). A defendant convicted of second offense DORL “shall be punished by confinement for not less than forty-five (45) days nor more than one (1) year.” Tenn Code Ann. § 55-50-504(a)(2) (1995). Further, Appellant was also convicted of violating the open container law, which is a Class C misde mean or punish able by fine only. See Tenn. Code Ann. § 55-10-416(b)(1) (199 5).

In determining the length of Appellant’s sentences, the trial court found that Appellant should receive the maximum sentence for each conviction. The trial court based its decision to impose maximum sentences on its finding that Appellant had previously committed an alcohol related offense while he was on probation for similar offenses a nd becau se Appe llant’s criminal record consisted of three prior DUI convictions, three prior DORL convictions, thirteen prior public intoxication convictions, and one prior disorderly conduct conviction.

The record amply supports the trial court’s findings in support of the imposition of maximum sentences. The record indicates that Appellant committed the offense of public intoxication while he was on probation for DUI and DORL. More importantly, our reading of Appellant’s criminal record for

-17-the ten years prior to the offenses in this case indicates that Appellant has three p rior DU I convic tions, th ree prio r DO RL co nviction s, eigh t prior pu blic intoxication convictions, one prior disorderly conduct conviction, and two prior traffic offense convictions. 4 Unde r these circ umsta nces, w e conc lude that, upon de novo review in ob servanc e of the les s stringen t standar ds attach ed to misd eme anor s enten cing, th e trial co urt did n ot abu se its dis cretion when it imposed maximum sentences for Appellant’s convictions for fourth offense DUI and second offense DORL.

Although not specifically challenged by Appellant, we conclude that the portion o f his sente nce for the open c ontaine r violation tha t impose s thirty days of confinement must be vacated. As previously noted, violating the open containe r law is a C lass C m isdem eanor w hich is pu nishab le by fine on ly. See Tenn. C ode Ann . § 55-10-416 (b)(1) (1995). Th us, the impos ition of thirty days of confinement for the open container violation was clearly improper and that portion of the sentence must be vacated.5

XII. CONSECUTIVE SENTENCING

4 We note that Appellant’s criminal record for the ten years prior to the offenses in this case indicates that Appellant has six additional public intoxication convictions and a conviction for contributing to the delinquency of a child. However, because the record is not entirely clear about these convictions, we have given Appellant the benefit of the doubt and do not consider them. 5 We do not vacate the portion of this sentence that imposes a fine.

-18-

Appe llant co ntend s that th e trial co urt erre d whe n it orde red his sentences for fourth offense DUI and second offense DORL to run consecu tively.

Consecutive sentencing is governed by Tennessee Code Annotated section 40-35 -115. The trial cou rt has the discretion to o rder consec utive senten cing if it finds tha t one or m ore of the required statutory crite ria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further, when imposing consecutive sentencing based on a finding that a defendant is a “dangerous offender”, the court is required to determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are congruent with general principles of senten cing. State v. Lane, ____ S .W.2 d ____ (Tenn . 1999); State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).

In imposing consecutive sentences, the trial court made no express finding as to which factors under T enn. Cod e Ann. Se ction 40-35-11 5’s factors applied. How ever, it is clear that the trial court impo sed conse cutive sentencing because it found that Appellant was a dangerous offender whose behavior indicates little or no regard for human life and who has no hesitation in com mitting a c rime in w hich the ris k to hum an life is high . See Tenn. Code Ann. § 40-35-115(4) (1997). We agree that Appellant is a dangerous offender for who m co nsec utive se ntenc ing is ap propr iate. Ap pellan t has re peate dly endan gered th e lives of oth er moto rists by com mitting the offense o f DUI.

-19-Indeed, this Court has previously held that a defendant with multiple DUI convictions “may be properly classified as a ‘dangerous offender’ for whom consecu tive sentencing is ap propriate.” State v. Carl E. Campen, No. 01C01-9512-C C-004 33, 199 7 W L 6617 28, at *4 (T enn. C rim. App ., Nashville, O ct. 24, 1997). Fu rther, we conclud e in our de novo review that the Wilkerson test is satisfied. First, consecutive sentencing is appropriate to the seriousness of the offens es. Certa inly, both D UI and DOR L are se rious offen ses. See Carl E. Campen, 1997 W L 661728 , at *4. Second, it is clear that co nsecutive senten cing is ne cessar y to protec t society from Appella nt’s crimin al condu ct. Appe llant ha s con tinued to com mit the offens e of DU I, even th ough his drive r’s licens e has been revoke d or su spen ded o n three differen t occa sions . It is clear that the prior lenient punishments that have been imposed on Appellant have done absolutely nothing to deter his continued violation of the DUI and DOR L laws . Third , we co nclud e that c onse cutive s enten cing in this cas e is entirely congruent with general principles of sentencing. This issue has no merit.

XIII. CONCLUSION

Because the trial court improperly imposed thirty days of confinement for the o pen c ontain er con viction, w e vaca te that p ortion o f Appe llant’s sentence. In all other respects, the judgment of the trial court is affirmed.

____________________________________

-20-

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ NORMA MCGEE OGLE, JUDGE

-21-