# FILED
January 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9802-CR-00074 Appellee, ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT, RICKY DALE KEEN, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
DAVID DOYLE JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter ZOE LAA KSO CLI NTO N J. MOR GAN Asst. District Publi c Defender Asst. Attorney General 117 East Main St. John Sevier Bldg. Gallatin, TN 37066 425 Fifth Ave., North Nashville, TN 37243-0493 LAWRENCE RA

Y WHITLEY District Attorney General SALLIE WADE BROWN Asst. District Attor

ney General 113 West Main St. Gallatin, TN 37066 OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

In November 1997, the defendant pled g uilty to aggrav ated burglary, a Class C felony. A sentencing hear ing was scheduled

to determine the length and manner of service of the sentence. After receiving evi dence, the trial court applied four statutory enhancing factors and one mitigating factor, but declined to apply several other mitig ating factors submitted by the defendant. Based on i ts findings, the trial c

ourt 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 ap peals, challenging hi s 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 inv olved more than one victim; that the trial court err ed in failing to apply the mitigatin g factors hesubmitted for consideration; and that the trial cour t f ailed to comply with the requirement that it art iculate how the mitigating and enhancing factors were balanced in determining th e sentence. The defendant also argues that the tr ial court erredin refusing to sentence him to community

correctio ns and in admitting evi dence of charg es pending a gainst him.

When a defendant challenges his or her sentence, this Cour t conducts a de novo review of the s entence by

considering, inter alia , the evidence receiv ed at trial and the nature and characteristi cs 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. Cri m. App. filed July 20, 1995, at Knoxville). For this reason, a transcript of the guilt y plea hearing is often (i f not alwa ys) needed in order to conduct a proper review of the sentence imposed.1 In essence, on May 29, 1997, t hree days aft er being rel eased from jailon an unrelat ed charge, the defendant entered a home whil e the homeowner was away for the purpose of l earning i ts lay -out and later returning. Two days later, the defendant re-entered the home w hile four people inside were sleeping f

or the purpose of

masturbating whi le watchi ng a woman sleep, an acti vity which, i t 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 defenda nt was charged wi th separate cou nts of aggravat ed burglary

for each ti me he entered the h ome, but one of the cou nts was dismissed when he pl ed guilt y. Because t he record on appeal does not contain t he indict ment or the guil ty pl ea hearing t ranscript , however, we cannot determine for cer

tain whi ch count the defendant pled t o and which count was dismissed.
2 The trialcourt 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 Here, the recor d on appeal is quite bare, c ontaining only the ori ginal and amended judgment forms, the notice of appeal and related documents, the sentencing hearing transcript, andth e sentencing hearing exhibits, which include the presentence report. The record on appeal does not contain a transcript of the g uilty plea hearing or
even a copy of the indictment in this case. Some of the basic f acts underlyin g th e aggravatedburglary appear in the sentencing hearing transc ript and the presentence report, 1 but these facts are not enough to properl y review the sentence in this case. I n determining the defendant’s sentence, the trial court relied substantially upon the nature of the offense, enhancing the defendant’ s se ntence because it found the off ense “involvedmore than one victim . . . the offense involved a vic tim and was committed to gratify the defendant’s desire for pleasur e or excitement . . . [and] the defendant had no hesitation about committing a crime w hen the risk to human life was high.” 2 See T.C.A. § 40- 35- 114(3), (7), (10). Bec ause of this, the fact that the recor d is incomplete---the most notabl e absences being the guilty plea hearing transcript and the indictment--- requires us to presume that had all of t he evidence considered by the trial court been inc l uded 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)(stati ng that when necessary parts of the rec ord are missingon appeal, this Court must presume that the trial court’s decision was correct).

We note that in his reply brief, the defendant arg ued that because the State failed to separately designat e additional portions of the record it believed to be necessary4

for fu ll review of the is

sues presented on appeal, as prov ided for in T.R.A.P. 24(a), the State should be precluded from argui ng that an incom plete record bars review of the defendant’s sentence. Such an argument is disingenuous. Regardless of wh ether the State argues t hat an incomplete record bars r eview of the defendant’s sentenc e---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 in sufficient 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.

Ne vertheless, despite the incomplete record, the record on appeal i s sufficientto determine that the trial court did not err in sentencing the defendant to prison rather than community corrections. A felon’s rehabilitatio n pot ential and the risk of repeating criminal conduct are fundamental i n determining whether he or she is suited foralternative sentenci ng. See T.C.A. § 40-35-103(5). Here, the thirty-five-year-old defendant has been previously convicted of seven felonies and sever al misdemeanors. Twice he has violated imposed terms of probation, and when he comm itted the offense in this case, he had been released from jail on an unrelated charge for only three days. Even though the defendant argues otherw ise, these facts show a poor potential for rehabilitation, which

is suffi cient r

eason to justify a term of

i nc arceration rather than alte rnative sent encing. 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 cri mes three months after his arres t in this case. At the time of the sentencing hearing, the defendant had been arrested for two other aggravated burglaries

and an at tempted rape, but preliminary hearings had not yet been held.5

Nevertheless, t he trial c ourt admitted the testimony of thr ee alleged victims, w ho described circumstances simil ar to t he facts underlying the i nstant 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 no t for consideration
as an enhancing factor, but rather, solel y for the limited purpose of eval uating the defendant’s potential for rehabilitation in terms of whether placement in the co mmunity corrections

program was appropri ate. Given this, even it was error to admit this evidence of subsequent crimes, any error must be dee med h armless s ince, as we have determined, the rec

ord cont ains suf ficient indepen dent evidence t o justify imposin g a term of incarceration rather than community corrections.

In sum, we conclud e the reco rd is incom plete to conduct a proper d e novo review of the defendant’s sentence. As such, w e presume th at the imposition of a six year sentence was p roper. Base d on the record that was pr esented 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. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge