Campbell further contends that the trial court improperly relied on his statements in the presentence report, admitted without objection, regarding underage drinking and drug use to enhance his sentence and that "such a 'bare bones statement'" is insufficient to enhance a sentence. See State v. Clifford Atkins, No. 03C01-9302-CR-00058, 1994 WL 81524, at *13 (Tenn.Crim.App., at Knoxville, Mar. 3, 1994) (concluding that the defendant's "bare bones" admission of a drug and alcohol problem in the presentence report was not enough to enhance his sentence based on prior criminal activity, given that there was no proof at the sentencing hearing of any criminal conduct or the use of illegal drugs);see also State v. James E. Brice, No. 03C01-9605-CC-00189, 1996 WL 689923, at *3 (Tenn.Crim.App., at Knoxville, Dec. 3, 1996) (stating that "defendant's admitted underage drinking in this case is entitled to little or no weight as an enhancing factor because it occurred approximately ten years before this offense and did not result in any arrests or convictions"), abrogated on other grounds by State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Further, he reasons that statements regarding underage drinking should not be used against him because this information is requested "for treatment purposes to help change a person's direction" and because "use of this information to further punish an individual would, necessarily, stifle the providing of same."
The Appellant asserts that the trial court erred by considering, as a circumstance of the DUI offense, the deaths of the four passengers of the Cadillac when sentencing the Appellant, despite the fact that the jury acquitted the Appellant of any responsibility for those four deaths. In support of his argument that enhancement of a sentence based upon the consideration of a charge for which a defendant is acquitted is improper, the Appellant cites State v. Dockery, 917 S.W.2d 258 (Tenn.Crim.App. 1995) and State v. James E. Brice, No. 03C01-9605-CC-00189, 1996 WL 689923, at * 4 (Tenn.Crim.App., Knoxville, Dec. 3, 1996). InDockery, this Court held that consideration of the death of a victim may not be used as an enhancement factor for a DUI conviction where the defendant had been acquitted of vehicular homicide.
The Appellant, relying on State v. David W. Andrews, No. 02C01-9201-CC-00024 (Tenn.Crim.App. at Jackson, Jan. 20, 1993), argues that legal precedent precluded the trial court from considering the death of the victim in enhancing the Appellant's sentence. See also State v. Dockery, 917 S.W.2d 258, 262 (Tenn.Crim.App. 1995); State v. James E. Brice, No. 03C01-9605-CC-00189 (Tenn.Crim.App. at Knoxville, Dec. 3, 1996) (also holding that enhancement of a sentence based upon consideration of a charge for which a defendant is acquitted is improper). The Appellant's argument is misplaced.
State v. Combs, 945 S.W.2d 770, 774 (Tenn.Crim.App. 1996), perm. to appeal denied, (Tenn. 1997); State v. Brice, No. 03C01-9605-CC-00189 (Tenn.Crim.App. at Knoxville, Dec. 3, 1996). Neither the State nor the Appellant presented any additional proof at the sentencing hearing.
In effect, the DUI statute 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 incarceration established by statute, if any, is to be suspended.See Troutman, 979 S.W.2d at 273; State v. Combs, 945 S.W.2d 770, 774 (Tenn.Crim.App. 1996), perm. to appeal denied, (Tenn. 1997); State v. Brice, No. 03C01-9605-CC-00189 (Tenn.Crim.App. at Knoxville, Dec. 3, 1996). Thus, the trial court's imposition of a sentence of eleven months, twenty-nine days is mandated by our legislature and is not improper.
A review of the presentence report established the defendant was 43 years of age and used marijuana between the ages of 21 to 26, more than fifteen years ago. Standing alone, this factor would not rise to the level of criminal behavior permitting enhancement of a sentence. State v. James E. Brice, No. 03C01-9605-CC-00189 (Tenn.Crim.App., Knoxville, December 3, 1996); State v. Clifford Atkins, No. 03C01-9302-CR-00058 (Tenn.Crim.App., Knoxville, March 3, 1994). In State v. Carrico, 968 S.W.2d 280, 288 (Tenn.
State v. Combs, 945 S.W.2d 770, 774 (Tenn.Crim.App. 1996), perm. to appeal denied, (Tenn. 1997); State v. Brice, No. 03C01-9605-CC-00189 (Tenn.Crim.App. at Knoxville, Dec. 3, 1996). In determining the percentage of the sentence, the court must consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing.