IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
January 19, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9802-CR-00074
Appellee, )
) SUMNER COUNTY
VS. )
) HON. JANE WHEATCRAFT,
RICKY DALE KEEN, ) JUDGE
)
Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID DOYLE JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
ZOE LAAKSO CLINTON J. MORGAN
Asst. District Public Defender Asst. Attorney General
117 East Main St. John Sevier Bldg.
Gallatin, TN 37066 425 Fifth Ave., North
Nashville, TN 37243-0493
LAWRENCE RAY WHITLEY
District Attorney General
SALLIE WADE BROWN
Asst. District Attorney General
113 West Main St.
Gallatin, TN 37066
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
In November 1997, the defendant pled guilty to aggravated burglary, a
Class C felony. A sentencing hearing was scheduled to determine the length and manner
of service of the sentence. After receiving evidence, the trial court applied four statutory
enhancing factors and one mitigating factor, but declined to apply several other mitigating
factors submitted by the defendant. Based on its findings, the trial court sentenced the
defendant as a Range I standard offender to the Department of Correction for six years,
the maximum sentence. See T.C.A. § 40-35-112(a)(3).
The defendant now appeals, challenging his sentence. Specifically, the
defendant challenges the length of his sentence, arguing that the trial court erroneously
applied enhancing factor T.C.A. § 40-35-114(3), that the offense involved more than one
victim; that the trial court erred in failing to apply the mitigating factors he submitted for
consideration; and that the trial court failed to comply with the requirement that it
articulate how the mitigating and enhancing factors were balanced in determining the
sentence. The defendant also argues that the trial court erred in refusing to sentence him
to community corrections and in admitting evidence of charges pending against him.
When a defendant challenges his or her sentence, this Court conducts a
de novo review of the sentence by considering, inter alia, the evidence received at trial
and the nature and characteristics of the criminal conduct. See T.C.A. § 40-35-210. For
those defendants who plead guilty, the guilty plea hearing is the equivalent of trial, in that
it allows the State the opportunity to present the facts underlying the offense. See State
v. Robert Bryant Rhodes, No. 03C01-9405-CR-00174, Blount County (Tenn. Crim. App.
filed July 20, 1995, at Knoxville). For this reason, a transcript of the guilty plea hearing
is often (if not always) needed in order to conduct a proper review of the sentence
imposed.
2
Here, the record on appeal is quite bare, containing only the original and
amended judgment forms, the notice of appeal and related documents, the sentencing
hearing transcript, and the sentencing hearing exhibits, which include the presentence
report. The record on appeal does not contain a transcript of the guilty plea hearing or
even a copy of the indictment in this case. Some of the basic facts underlying the
aggravated burglary appear in the sentencing hearing transcript and the presentence
report,1 but these facts are not enough to properly review the sentence in this case. In
determining the defendant’s sentence, the trial court relied substantially upon the nature
of the offense, enhancing the defendant’s sentence because it found the offense
“involved more than one victim . . . the offense involved a victim and was committed to
gratify the defendant’s desire for pleasure or excitement . . . [and] the defendant had no
hesitation about committing a crime when the risk to human life was high.”2 See T.C.A.
§ 40-35-114(3), (7), (10). Because of this, the fact that the record is incomplete---the
most notable absences being the guilty plea hearing transcript and the indictment---
requires us to presume that had all of the evidence considered by the trial court been
included in the record on appeal, it would have supported the imposition of a six year
sentence. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991)(stating that
when necessary parts of the record are missing on appeal, this Court must presume that
the trial court’s decision was correct).
We note that in his reply brief, the defendant argued that because the State
failed to separately designate additional portions of the record it believed to be necessary
1
In essence, on May 29, 1997, three days after being released from jail on an unrelated charge,
the defendant entered a home while the homeowner was away for the purpose of learning its lay-out and
later returning. Two days later, the defendant re-entered the home w hile four people inside were
sleeping for the purpose of masturbating while watching a woman sleep, an activity which, it seems, was
a habit of th e defen dant. W hen on e of the pe ople awa kene d and s aw the d efenda nt, he left.
Apparently, the defendant was charged with separate counts of aggravated burglary for each time he
entered the home, but one of the counts was dismissed when he pled guilty. Because the record on
appeal does not contain the indictment or the guilty plea hearing transcript, however, we cannot
determine for certain which count the defendant pled to and which count was dismissed.
2
The trial court also enhanced the defendant’s sentence because it found that the defendant
had “a previous history of criminal convictions or criminal behavior.” See T.C.A. § 40-35-114(1).
3
for full review of the issues presented on appeal, as provided for in T.R.A.P. 24(a), the
State should be precluded from arguing that an incomplete record bars review of the
defendant’s sentence. Such an argument is disingenuous. Regardless of whether the
State argues that an incomplete record bars review of the defendant’s sentence---or
whether the State may have somehow waived this argument under T.R.A.P. 24(a)---this
Court will not speculate what the missing portions of the record may or may not reveal.
Instead, the proper course of action is for this Court to sua sponte presume that the trial
court’s decision is correct when the record is insufficient to determine otherwise. In this
case, the incomplete nature of the record requires us to presume that a six year sentence
was justified in this case.
Nevertheless, despite the incomplete record, the record on appeal is
sufficient to determine that the trial court did not err in sentencing the defendant to prison
rather than community corrections. A felon’s rehabilitation potential and the risk of
repeating criminal conduct are fundamental in determining whether he or she is suited
for alternative sentencing. See T.C.A. § 40-35-103(5). Here, the thirty-five-year-old
defendant has been previously convicted of seven felonies and several misdemeanors.
Twice he has violated imposed terms of probation, and when he committed the offense
in this case, he had been released from jail on an unrelated charge for only three days.
Even though the defendant argues otherwise, these facts show a poor potential for
rehabilitation, which is sufficient reason to justify a term of incarceration rather than
alternative sentencing. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App.
1996).
The defendant also argues the trial court erred in admitting evidence that
the defendant committed similar crimes three months after his arrest in this case. At the
time of the sentencing hearing, the defendant had been arrested for two other aggravated
burglaries and an attempted rape, but preliminary hearings had not yet been held.
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Nevertheless, the trial court admitted the testimony of three alleged victims, who
described circumstances similar to the facts underlying the instant case, and the
testimony of the police officer investigating those cases, who stated the defendant had
confessed. The trial court reiterated that this evidence was admitted not for consideration
as an enhancing factor, but rather, solely for the limited purpose of evaluating the
defendant’s potential for rehabilitation in terms of whether placement in the community
corrections program was appropriate. Given this, even it was error to admit this evidence
of subsequent crimes, any error must be deemed harmless since, as we have
determined, the record contains sufficient independent evidence to justify imposing a
term of incarceration rather than community corrections.
In sum, we conclude the record is incomplete to conduct a proper de novo
review of the defendant’s sentence. As such, we presume that the imposition of a six
year sentence was proper. Based on the record that was presented to this Court,
however, the trial court did not err in denying the defendant placement in the community
corrections program. The trial court’s judgment is, in all respects, affirmed.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
NORMA McGEE OGLE, Judge
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