FILED

January 19, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

DECEMBER 1998 SESSION

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
2

O P I N I O N

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.
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

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
4

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.
5

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