IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
January 5, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No 03-C-01-9611-CR-00413
)
) Bradley County
v. )
) Mayo L. Mashburn, Judge
)
) (Sentencing)
RAYMOND CARTWRIGHT, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
C. Richard Hughes, Jr. John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 1453 500 Charlotte Avenue
Cleveland, TN 37364-1453 Nashville, TN 37243-0497
OF COUNSEL: Ellen H. Pollack
Assistant Attorney General
Charles M. Corn 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P. O. Box 1453
Cleveland, TN 37364-1453 Jerry M. Estes
District Attorney General
P.O. Box 647
Athens, TN 37371
Carl F. Petty
Assistant District Attorney General
P.O. Box 1351
Cleveland, TN 37364-1351
OPINION FILED:________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Raymond Cartwright (defendant), was convicted of evading arrest,
a Class A misdemeanor, by a jury of his peers. The trial court sentenced the defendant
to serve eleven months and twenty-nine days in the Bradley County Jail.1 The defendant
presents one issue for review. He contends the sentence imposed by the trial court was
excessive. After a thorough review of the record, the briefs submitted by the parties, and
the law governing the issue presented for review, it is the opinion of this court that the
judgment of the trial court should be affirmed.
The record in this case contains a transcript of the sentencing hearing and what was
formerly called the “technical record.” A transcript of the trial proceedings has not been
included in the record transmitted to this court. This omission prevents this court from
having access to all of the facts and circumstances considered by the trial court when
imposing the sentence challenged by the defendant. This is especially disadvantageous
when the parties referred to the facts adduced at the trial during the sentencing hearing.
It is the duty of the accused to prepare a record which conveys a fair, accurate and
complete account of what transpired with respect to the issues which form the basis of the
appeal. Tenn. R. App. P. 24(b).
This court has conducted a de novo review of the record before this court with a
presumption that the factual determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). Of course, the defendant, as the person challenging the length
of the sentence, has the burden of establishing that the sentence was erroneous.
Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401 (1997 Repl.); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The trial court found one mitigating factor, namely, the defendant’s conduct neither
caused nor threatened serious bodily injury. Tenn. Code Ann.§ 40-35-113(1). The court
found one enhancement factor, namely, the defendant has a previous history of criminal
convictions. Tenn. Code Ann. § 40-35-114(1).
The trial court found that the defendant has been previously convicted of three
1
The trial court did not assess a fine as part of the sentence.
2
counts of burglary: burglary first degree, burglary second degree, and burglary third
degree. He has also been convicted of grand larceny and petit larceny. The trial court
should have found that the defendant had a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community. Tenn. Code Ann. §
40-35-114(8). The defendant was released on parole after serving a portion of a prior
felony sentence. His parole was revoked, and he remained in the Department of
Correction until the expiration of his sentence. This court may consider factor (8) in
determining the issue presented for review. State v. Loden, 920 S.W.2d 261, 266 (Tenn.
Crim. App. 1995); State v. Smith, 891 S.W.2d 922, 931 (Tenn. Crim. App. ), per. app.
denied (Tenn. 1994).
It is obvious the trial court afforded the mitigating factor little weight. The record
establishes the trial court afforded the defendant’s prior convictions great weight. This
court affords enhancement factor (8) great weight as well. The weight given mitigating and
enhancement factors rests within the sound discretion of the trial court. State v. Moss, 727
S.W.2d 229, 237 (Tenn. 1986); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992), per. app. denied (Tenn. 1993). The trial court did not abuse its discretion when
assessing the weight given to these two factors. The defendant was sentenced to the
Department of Correction in each prior conviction. The maximum sentence was justified
to avoid depreciating the seriousness of this offense, fleeing from a police officer.
Furthermore, the length of this sentence will serve to deter the defendant as well as others
from committing such an offense. The offense of evading a police officer can create
dangerous conditions which could result in serious bodily injury to the defendant as well
as the police officer.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
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CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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