IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY, 1997 SESSION
September 9, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) No. 03C01-9608-CC-00305
Appellee, )
)
vs. ) Bradley County
)
ERWIN KEITH TINSLEY, ) Honorable R. Steven Bebb, Judge
)
Appellant. ) (Evading arrest, reckless driving,
) speeding, driving with a revoked
) license)
FOR THE APPELLANT: FOR THE APPELLEE:
D. MITCHELL BRYANT JOHN KNOX WALKUP
JENNE, SCOTT & BRYANT Attorney General & Reporter
260 N. Ocoee St.
P.O. Box 161 SARAH M. BRANCH
Cleveland, TN 37364-0161 Counsel for the State
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
203 Madison Ave.
P.O. Box 647
Athens, TN 37371
REBBLE JOHNSON
Assistant District Attorney General
93 Ocoee St. N. # 200
P.O. Box 1351
Cleveland, TN 37364
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
The defendant, Erwin Keith Tinsely, was convicted in a jury trial in the
Bradley County Criminal Court of reckless driving and evading arrest, both Class A
misdemeanors. The jury also convicted him of driving on a revoked license, a Class
B misdemeanor, and of speeding, a Class C misdemeanor. The trial court ordered
him to serve 75% of an effective sentence of eleven months and twenty-nine days
and to pay fines in the amount of $930.00. The defendant appeals pursuant to Rule
3, Tennessee Rules of Appellate Procedure, contending that he should be granted
a new trial as the state failed to record his earlier trial and that his sentences are
excessive. We disagree with the defendant's claims and affirm the trial court.
The record on appeal contains no transcript of the trial in this matter
nor does it contain a statement of the evidence as described in Rule 24(c),
Tennessee Rules of Appellate Procedure. We glean this brief summary of the facts
from the “technical” record provided by the Court Clerk of Bradley County.
On February 16, 1995, Office Wayne White stopped the defendant for
driving 65 miles per hour in a 45 mile per hour zone, and the defendant pulled into
the lot of a car dealership. Because Officer White believed the defendant acted
suspiciously, Officer White called a second officer to the scene. While he was
awaiting the arrival of the backup officer, White checked the defendant’s driver’s
license and discovered that it had been revoked. At some point, the two
officers asked the defendant to turn off the car. The defendant, however, put the
car into drive and accelerated away. The car jumped over a large curb and entered
the street. The defendant turned right at a red light without stopping and sped away
from the officers.
2
The defendant’s first trial ended when the jury was unable to reach a
verdict on December 5, 1995, and the case was reheard on March 7, 1996. At the
second trial, the jury found the defendant guilty of reckless driving, evading arrest,
driving on a revoked license, and speeding. The state filed a notice of intent to seek
enhanced punishment on the basis of the defendant’s two prior convictions for sale
of cocaine in Georgia. Upon conviction, the trial court sentenced him to the
maximum sentences of six months for reckless driving, eleven months and twenty-
nine days for evading arrest, six months for driving on a revoked license, and thirty
days for speeding. All sentences run concurrently, and the defendant must serve
the maximum rate of 75% of his sentence before he is eligible for certain release
programs. The defendant complains that the trial judge acted arbitrarily and
improperly in ordering him to serve the maximum sentence allowed by law for each
conviction.
When an accused challenges the length, range, or manner of service
of a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d)(Supp. 1996). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The burden for showing that the sentence is improper is
on the appealing party. Tenn. Code Ann. § 40-35-210 sentencing commission
comments.
A misdemeanant, unlike the felon, is not entitled to the presumption
of a minimum sentence. State v. Randall C. Conner, No. 03C01-9401-CR-00024,
slip op. at 6 (Tenn. Crim. App., Knoxville, Aug. 12, 1994); State v. Bernell B.
3
Lawson, No. 63, slip op. at 7 (Tenn. Crim. App., Knoxville, May 23, 1991). After
imposing a determinate sentence consistent with the purposes and principles of our
sentencing law, the trial court must determine the percentage of the sentence
which the misdemeanant must serve before becoming eligible for certain release
programs. Tenn. Code Ann. §§ 40-35-211; 40-35-302(b),(d). 1 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.
Tenn. Code Ann. § 40-35-302(d); State v. Palmer, 902 S.W.2d 391, 393-94
(Tenn.1995); State v. Gilboy, 857 S.W.2d 884, 888-889 (Tenn. Crim. App. 1993).
In this case, there is no transcript of the trial or the sentencing
proceedings. We do not know what factors the trial court considered in arriving at
its sentencing determinations. It is the appellant’s duty to file a record of the
proceedings that presents a fair, accurate, and complete account of what transpired
below with respect to the issues on appeal. Tenn. R. App. P. 24(b); State v. Ballard,
855 S.W.2d 557, 560-561 (Tenn. 1993). In the absence of such a record, this court
is bound by the conclusive presumption that the trial court acted correctly. State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). We are precluded from
considering an issue where the record does not contain a complete transcript or
statement of what transpired in the trial court with respect to that issue.2 Brian M.
1
Generally, a percentage of not greater than 75% of the sentence
should be fixed for a misdemeanor offender; however, a DUI offender may be
required to serve the full 100% of his sentence. Palmer, 902 S.W.2d 391,
393-94 (Tenn. 1995); Tenn. Code Ann. § 40-35-302(d).
2
We note that the technical record contains evidence demonstrating
that defendant has a significant history of prior criminal convictions and behavior,
Tenn. Code Ann. § 40-35-114(1), and that he had no hesitation in committing a
crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10).
Although the second factor may not be used to enhance the conviction for
reckless driving, it was surely relevant to the offenses of evading arrest, driving
on a revoked license, and speeding. These factors alone may well be sufficient
to justify the service of 75% of the defendant’s sentence.
4
Herman v. State, No. 03C01-9601-CR-00035, slip op. at 12 (Tenn. Crim. App.,
Knoxville, May 7, 1997).
The defendant argues that the state had a duty to see that his trial was
properly recorded and that, since no record was made, this court should set aside
the verdict and grant him a new trial. To support this argument the defendant
mistakenly relies upon Tennessee Code Annotated section 40-14-307 which
requires that “a designated reporter shall attend every stage of each criminal case
before the court and shall record verbatim . . . all proceedings had in open court and
such other proceedings as the judge may direct.” Tenn. Code Ann. § 40-14-
307(a)(1990)(emphasis added).
The defendant, however, has failed to note Tennessee Code
Annotated section 40-14-301 which defines “criminal case” as “the trial of any
criminal offense which is punishable by confinement in the state penitentiary.”
Tenn. Code Ann. § 40-14-301(2)(1990). The defendant was charged with four
misdemeanors none of which were punishable by greater than eleven months and
twenty-nine days in the county jail or workhouse. See Tenn. Code Ann. §§ 40-20-
103, 40-35-111 (1990). Thus, he has no right under Tennessee law to a verbatim
transcript of the proceedings in the trial court. State v. Larry D. Swafford, No.
03C01-9502-CR-00046, slip op. at 3 (Tenn. Crim. App., Knoxville, Nov. 16, 1995),
perm. to appeal denied (Tenn. 1996); see also State v. Hammond, 638 S.W.2d
433, 435 (Tenn. Crim. App. 1982); State v. Doyle Baugus, No. 03C01-9103-CR-85,
slip op. at 2 (Tenn. Crim. App., Knoxville, Sept. 17, 1991).
5
The defendant could have followed the procedures for preparing a
statement of the evidence pursuant to Tennessee Rules of Appellate Procedure 24,
but he did not.3 Given the deficient record on appeal, we must presume that the
rulings of the trial court were correct. Accordingly, we affirm the sentences imposed
by the trial court.
________________________
CURWOOD WITT, Judge
CONCUR:
___________________________
JOE B. JONES, Presiding Judge
___________________________
JOSEPH M. TIPTON, Judge
3
Rule 24(c) of the Tennessee Rules of Appellate Procedure
contains the procedures to be followed when a verbatim transcript is unavailable.
The rule provides that
1. An appellant, using the best available means
including his recollection, shall prepare a fair,
accurate and complete account of what transpired
below with respect to those issues that are the bases
of the appeal;
2. The statement, certified by the appellant or his
counsel as an accurate account of the proceedings,
must be filed with the clerk of the trial court within 90
days after filing the notice of appeal.
3. Upon filing the statement, the appellant shall
simultaneously serve notice of the filing on the
appellee, along with a brief declaration of the issues
he intends to present on appeal. Proof of service
must be filed with the trial court.
4. The appellee then has fifteen days to file any
objections to the statement prepared by the appellant.
5. The trial court resolves any differences between the
parties regarding the statement.
Tenn. R. App. P. 24(c).
6