# FILED
February 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9701-CR-00032

) ) Davidson County v. ) ) Honorable J. Ran dall Wyatt , Jr., Judge ) TIMOTHY LERON BROWN, ) (Sale of Cocaine) ) Appellant. ) For the Appellant : For the Appellee : Roger K. Smith John Knox Walkup 104 Woodmont Blvd., Suite 115 Attorney General of Tennessee Nashville, TN 37205 and Lisa A. Naylor Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Katie Miller Assistant District A

ttorney General Washington Square 222 2nd Avenue North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Timothy Leron Brown, was convicted in 1993 upon pleas of guilty to one count of sell ing more than .5 grams of coca ine and two counts of selli ng more than twenty-six grams of cocaine, all Class B felonies. As a Range II, multiple offender, he received one twenty -year sentence and two fifteen-year sentences, with one of the fifteen-year sentences to be served consecutivel y to the twenty-y

ear sentence for an effective sentence of thir ty-five years. The defendant filed a postconviction petition chal lenging his convi ctions, which resulted in the present delayed appeal. See Timothy Brown v. Stat e , 01C01-9507-CR-00216, Dav idson County (Tenn. Crim. App. July 26, 1996) . In this appeal as of right , the defendant challenges the length and consecutive nature of his sentences.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. §§ 40-35-401( d) and -402(d). As the Sentencing Commission Comments to these sec tions note, the burden is now on the appealing party to show that the sentencing is improper. This means that if the trial court f ollowed the statu tory sentencing pro cedure, made findings of fact that are adequately suppor ted in the record, and gav e due consideration and proper weight to the facto rs and principles that ar e relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a diff erent result were preferred. State v. Fletcher, 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

In conducting a de novo review, we mu st consid er (1) the e vidence, if any, received at the trial and sentencing hearing, ( 2) the presentence report, ( 3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the3

potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss , 727 S.W.2d 229 (Tenn. 1986).
Initially, we note that the defendant has hampered ou r de novo review in this case by failing t

o include the presentence repor t and other exhibits to the sentencing hearing in the record on appeal. At the sent encing hearing, the stat e introduced the presentence report, the defe ndant’s Department of Correction records, and Nashville Metropol itan Police Department recor ds, none of which are part of the record on appeal. The duty fall s upon an appellant to prepare suc h a record and transcript necessary

to convey a fair, accur ate and complete account of what tr anspired relative to the issues

on appeal. T.R.A.P. 24(b). In the absence of an appropriate record, we must presume tha t the trial court’s deter

minations are correct. See , e.g ., State v. Meeks , 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988); State v. Beech , 744 S.W.2d 585, 588 (T enn. Crim. App. 1987).

At the defendant’s sentencing hearing, Mike Apuzzo, a drug task force officer, testified about some of the underly ing facts of the defendant’s previ ous convictions. He sai d that in 1989 he searched the defendant’s residence and found four hundred and one grams of cocaine, marijuana, drug paraphernal ia, guns, and some items that had been stolen. Officer Apuzzo said that a month l ater he arrested the defendant for assault and battery and driving on a suspende d license and that he found thirteen grams of cocaine on th e defendant’s person. Officer Apuzz o said that he again found the defendant in the possessi on of cocaine and marijuana whi le the other drug posses

sion charg es were pen ding again st him.

The record also reflects that the defendant was arrested once w hile he was released on a furlough and that the defendan t committed the offenses in this case4

while he was on parol e. However, wi thout the presentence report and other exhibits to the sentencing hearing, w e cannot tell whether the d efendant’s arrest while he was released on furlough result ed in a conviction. We are also unable t o discern how many convictions the defendant has or the nature of all of his convi ctions.
At the conclusion of the sentencing hearing, the trial cour

t found that the defendant had several prior ar rests and prior convi ctions. The court noted that the defendant had prior convictio ns for possessi ng drugs, a convictio n for carrying a weapon, two convictions for leaving the scene of an accident, shoplifting convictions, assorted driving c

onvictions, and other conv ictions. The court found that the defendant had been involved in “a ll kinds of criminal conduc t for the last several y

ears” and that the defendant committed the present offenses w hile he was on parole.

The trial court enhanced the defendan t’s sentences based upon his history of criminal behavior, previous inability to comply with conditions of a sentence involving rel ease in the community, and the fact that the defendant committed the offenses while he was on par ole. See T.C.A. § 40-35-114(1), (8) , and (13). The trial court ordered that one of the sentences be served conse cutively to the others because it found the defendant to be a professional cr iminal who has devoted hi mself to criminal acts as a major source of his livelihood.

I

The defendant contends that the trial court improperly enhanced his sentence. He argues that the trial court erred when it considered his arrest record in finding that he had a history of criminal behavior. He also contends that the trial court should not have based its appl ication of factor (8), regar ding a previous unw

illingness to comply with conditions of a sentence involving release into the community, on his commission of the crimes for w hich he was being senten ced.5 Though the trial court should not have considered evidence of me re arrests as proof of criminal behavior, see State v. Ne wsome , 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990), the ex tent of the trial court’s r eliance on the defendant’s prior arrests is unclear on the record before us. The court st ated, “Beginning in 1990, as far as the Presentence Report is concerned, and going back to 1986, you’ve had -- and I’m not saying that all of thes e resulted in convicti ons -- but you’ve had a number of arrests on misdemeanors and felonies.” The cour t then listed several o

f the defendant’s prior convictions. Applica

tion of enhancement factor (1) was appropriate based on the defendant’s prior convictions.

Next, the defendant contends that the trial court erred by applying factor (8) based solely upon hi s commission of the offenses for which he was being sentenced. For factor (8) to apply, a defendant must have “a previous history

of unwillingness to c

omply with the conditi ons of a sentence involvi ng release in the community.” T.C.A. § 40-35- 114(8). In State v. Hayes , 899 S.W. 2d 175, 186 (Tenn. Crim. App. 1995), this cour t recognized that the c

ommission of an offense for which a defendant is being sentenced will not make factor (8) applicable . However, the court also noted that when a defendant is being sentenced for a series of offenses that were committed over time, the req uisite previous hist ory of noncompliance may be s hown for the most recent offenses. Id

.

In this vein, the trial court was justified in applying factor (8) to enhance the defendant’s sentences for his most r ecent convictions based on his commission of the first offense. The defendant committed all thr ee of the offenses in this case during a three-week period the fir st month that he was on parole

.
Although we recognize that application of factor (8) to the defenda nt’s sentence for the first offense based solel y on his commission of that offense w ould be6

improper, see Hayes , 899 S.W.2d at 186, th e defendant is not entitled to relief on this ground. W ithout th e presen tence rep ort and ot her sente ncing hea ring exhibi ts, we cannot determine whether the evidence presented at the sen tencing hearing otherwise supports application of factor ( 8) to the defendant’s sentence for the fir st offense. The presentence report and the ev idence received at the sent encing hearing are ess ential parts of our de novo review. T.C.A. § 40-35-210; Ashby , 823 S.W.2d at 169. In the absence of an appropriate record, we must presume that the tri al court’s determinations are correct. See , e.g ., Meeks , 779 S.W.2d at 397; Beech , 744 S.W.2d at 588.

In any event, whether

factor (8) was or w

as not properly applied does not necessarily change the amount of sentencing enhancem ent that is appropriate. As this court noted in Hayes ,

it is important to note that whether both factor (8) a nd factor 13[(b )] apply or only one applies, the amount of sentencin g enhancement involved does not neces sarily change. The mere number

of existing enhancement factors is not relevant -- the important consideration bein g the weight to be given each factor i n ligh t of its relevance to the defendant’ s personal circumstances

and background and the circum sta nces surrounding his crimi nal conduct. See State v. Moss , 727 S.W.2d at 238. In this respect, the more negatives shown to exist in the defendant’s background and the greater degree of his proven cul pability in the off ense may t ransl ate into the application of multiple enhancement factors, but theextent of sentencing enhance ment fl ows f rom the increased personal negat ives and degree of culpability, not the number o f applicable factors. 899 S.W.2d at 186. The record before us supports the len gth of the sentences imposed by the trial court.

II

Finally, the defendant contends that the trial court err ed by ordering that two of his sentences be served consecutively to each other based, in part, on the fa ct that he wa s on parol e when he co mmitted the off enses. In ordering t he conse cutive sentences, the trial court stated:7 And as I’ve said, you’ve been absolutely and continually involved with the violatio ns of the law for the last sev en or eight years. I think [theG eneral’s] Motion that y ou are a professional criminal who has devoted yourself to

criminal acts as a major source of your li velihood, t hat can’t be denied. I don’t know wha

t else you w

ould have ha

d time to do the number of times you’ve been arrested. And I think No. 2 also applies, that you are an offender who has a record of criminal activity that’s extensive. There can’t be any doubt about that. And then there’s another thing having to do in your case with your being on parole. The court is of the opini on -- I’m not going to run each an d everyone of these cases c onsecutively, but I do

thi n k under Section 40-35-115 that -- that at lea st one of these sentences are to run consecuti ve to the other. . . . Although the trial court noted the defendant’s parole status w hen it imposed the consecutive sentence, it also found that the defendant was a profess ional criminal with an extensive record of criminal activity

. See T.C.A. § 40-35-115(b)(1) and (2).
The defendant does not challenge the trial court’s findings that he is a professional criminal and has an extensive record of criminal activity. Either of these finding s are suf ficient to warrant consecut ive senten cing if th e imposit ion of co nsecutive sentences are consistent w ith the purposes and princip les of the sentencing act. See Id .; State v. Wilkerson , 905 S.W.2d 933, 93 8 (Tenn. 1995). Our review of the record in this case uncovers nothing that would overcome the presumption that the trial court’s sentencing determinations were correct in this regard. Accordingly, the sentence imposed by the trial cour t is affirmed.

Joseph M. Tipton, Judge8

CONCUR:

John H. Peay, Judge

David H. Welles, Judge