IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
AUGUST 1999 SESSION
September 22, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9810-CR-00439
Appellee, )
) WILSON COUNTY
VS. )
) HON. JAMES O. BOND,
GLYNNON BRADSHAW, ) JUDGE
)
Appellant. ) (Statutory Rape - Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
FRANK LANNOM PAUL G. SUMMERS
BRODY N. KANE Attorney General and Reporter
102 East Main Street
Lebanon, TN 37087 LUCIAN D. GEISE
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
TOM P. THOMPSON, JR.
District Attorney General
ROBERT N. HIBBETT
Assistant District Attorney General
119 South College Street
Lebanon, TN 37087-3609
OPINION FILED:
AFFIRMED AS MODIFIED
JOE G. RILEY, JUDGE
OPINION
Defendant, Glynnon Bradshaw, entered a plea of guilty to statutory rape in
the Criminal Court of Wilson County. The length and manner of service of the
sentence were left to the discretion of the trial court. After a sentencing hearing, the
trial court sentenced the defendant to two years as a Range I standard offender with
the requirement that he serve one year in split confinement followed by supervised
probation. On appeal, defendant contends
1. the length of his sentence is excessive;
and
2. one year of split confinement is more
onerous than a two-year sentence
ordered to be served in confinement.
We agree with defendant’s second contention and modify the term of split
confinement to six months.
PROCEDURAL HISTORY AND FACTS
Defendant was charged in a one-count indictment alleging statutory rape and
pled guilty as charged. The trial court conducted a sentencing hearing in order to
determine the length and manner of service of the sentence. Although the
sentencing hearing transcript is a part of the record, the transcript of the guilty plea
hearing is not.
According to the pre-sentence report, the 14-year-old female victim of this
statutory rape and a 12-year-old female had been given marijuana and alcohol and
vaginally penetrated. The defendant and Jenadiah Barnes were charged in
connection with the incident. The defendant was only charged with the statutory
rape of the 14-year-old victim, whereas Barnes was charged with regard to the 12-
year-old female.
The only person to testify at the sentencing hearing was the probation officer.
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The probation officer testified as to defendant's prior adult convictions for the traffic
offense of failing to use a proper child restraint and the unlawful possession of
intoxicating liquor by a person under 21 years of age. The defendant also had
juvenile adjudications for the casual exchange of a controlled substance and the
unlawful possession of intoxicating liquors by a person under 21 years of age. The
probation officer also testified about the defendant's employment history, education,
cooperative attitude and conduct since the offense. There was no testimony
concerning the facts surrounding the offense. The defendant did not testify.
The trial court found that no mitigating factors applied. The trial court,
however, applied the following enhancement factors: (1) defendant had a previous
history of criminal convictions or criminal behavior; (2) defendant was a leader in the
commission of an offense involving two or more criminal actors; and (3) the offense
involved more than one victim. See Tenn. Code Ann. § 40-35-114(1), (2), (3). The
trial court imposed the maximum two-year sentence and ordered the defendant to
serve one year in split confinement followed by supervised probation.
STANDARD OF REVIEW
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). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply
with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
LENGTH OF SENTENCE
A. Enhancement Factors
Defendant contends the trial court improperly applied the enhancement
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factors. As to defendant’s previous criminal history and convictions, the trial court
properly considered the two adult misdemeanor convictions. However, the two
juvenile adjudications were improperly considered. For offenses committed after
July 1, 1995, juvenile adjudications may only be considered if they qualify under
Tenn. Code Ann. § 40-35-114(20). State v. William Jason McMahan, C.C.A. No.
03C01-9707-CR-00262, Knox County (Tenn. Crim. App. filed March 31, 1999, at
Knoxville). Only juvenile adjudications that would constitute a felony if committed
by an adult may be considered under Tenn. Code Ann. § 40-35-114(20). Neither
of the two juvenile adjudications would be a felony if committed by an adult.
Defendant asserts the trial court improperly applied the remaining two
enhancement factors; namely, (1) the defendant was the leader in the commission
of the offense; and (2) the offense involved more than one victim. See Tenn. Code
Ann. § 40-35-114(2), (3). The applicability of these enhancement factors depends
upon the facts and circumstances of the offense. Although the pre-sentence report
is in the record, the transcript of the guilty plea is not. Facts concerning the offense
were in all probability stated at the time of the plea. See Tenn. R. Crim. P. 11(f).
We “will not speculate what the missing portions of the record may or may not
reveal.” State v. Ricky Dale Keen, C.C.A. No. 01C01-9802-CR-00074, Sumner
County, slip op. at 4 (Tenn. Crim. App. filed January 19, 1999, at Knoxville), perm.
to app. denied (Tenn. June 21, 1999). We must presume that the absent transcript
would have supported the trial court’s determination. Id. at 3; State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). Thus, defendant’s assertion that the two
enhancement factors were improperly applied is without merit.
B. Mitigating Factors
Defendant also asserts the trial court should have considered the following
mitigating factors: (1) the lack of a significant criminal history; (2) failure to commit
criminal acts since the commission of this offense; and (3) cooperation with the
police department. Based upon the record, we find no error in the trial court’s
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rejection of these alleged mitigating factors.
We conclude the length of the sentence is proper even though the trial court
improperly considered the two juvenile adjudications.
SPLIT CONFINEMENT
Defendant contends the trial court erred by imposing one year of split
confinement for a two-year sentence. Specifically, he alleges the one year of split
confinement is more onerous than a flat two-year sentence ordered to be served in
confinement. We agree with defendant’s contention.
We recognize that a defendant receiving probation may ordinarily be required
to serve up to one year in the local jail in continuous confinement followed by
probation. Tenn. Code Ann. § 40-35-306(a). However, inmates with felony
sentences of two years or less “shall have the remainder of their original sentence
suspended upon reaching their release eligibility date” unless the district attorney
general files a petition requesting denial and establishes at a hearing that defendant
committed disciplinary violations while in the institution. Tenn. Code Ann. § 40-35-
501(a)(3), (6). This Court has previously ruled that the period of time ordered to be
served in split confinement may not exceed the defendant’s release eligibility date.
State v. John W. Hill, C.C.A. No. 01C01-9802-CC-00072, Franklin County (Tenn.
Crim. App. filed February 25, 1999, at Nashville). The release eligibility date for a
Range I standard offender receiving a two-year sentence is 7.2 months less certain
sentence credits. Tenn. Code Ann. § 40-35-501(c).
Based upon the foregoing, the length of defendant’s split confinement for the
two-year sentence may not exceed 7.2 months less certain credits. Accordingly, we
set the length of split confinement at six months.
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CONCLUSION
The sentence of the trial court is MODIFIED to reflect six months to be
served in split confinement. The sentence is AFFIRMED in all other respects.
___________________________
JOE G. RILEY, JUDGE
CONCUR:
________________________________
THOMAS T. WOODALL, JUDGE
________________________________
L. T. LAFFERTY, SENIOR JUDGE
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