### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs N

ovember 15, 2000 STATE OF TENNESSEE v. MARK A . SCARBOROUGH Direct Appeal from the Circuit Court for Hickman County No. 99-5123CR-I Timothy L. Easter, Judge

No. M2000-01359-CCA-R3-CD - Filed December 28, 2000

Mark A. Scarboroug h appeals the sentencing decision of the Hickman County Circuit Court following his jury conviction of driving under the influence. The issue of enhanced punishment as a prior DUI

offender was submitted to the trial court. The court found the Ap pella nt gui lty of D UI, third offense, and sentenced him to eleven months, twenty-nine day s with 180 days to be

served in confinement

followed by six months probation. At the motion for new trial, the trial court modified its prior ruling and

reduced the Appellant’s conviction to DUI, second offense. The Appellant’s 180- day period of confinement was not modified. On appeal, the Appellant argue s that the trial court erred in failing to

reduce his sentence after it reduced his conviction from DUI, third offe nse, to DUI, second offense. Because the record is incomplete for review, we afford the sentence imposed by the trial court the pr

esumption of corr

ectness. Accor

dingly, we

affirm.
Tenn. R. App. P. 3; Judgm ent of the Circuit

Court Affirmed.

D AVID G. H AYES , J., de livered th e opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. Gary M. Howell, Columbia, Tennessee, for the Appellant, Mark A. Scarborough. Paul G. Summers, Attorney General and Repo rte r, Michael Moore, Solicitor General, Marvin E. Clements, Jr., Assistant Attor ney General, Ron

ald L. Davis, Distr

ict Atto rney Gen eral, and Lee Dryer, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION1 The Appellan t was originally cha rged with fou rth offense D UI, which is a felony. See T ENN
. C ODE A NN
. §

55-10-403(a) (1)(1998 Repl.). Th is charge was later amend ed to third o ffense DU I, which is a misdeme anor. See T ENN
. C ODE A NN
. § 55-10-403(a)(1)(1998 Rep l.).

2 Prior to trial, the Appellant

pled guilty to DORL and the violation of the open container law. Based on the Appellan t’s guilt

y pl ea, the State agre ed to nolle p rosequi the c ount chargin g a prior D ORL. T hus, the jury on ly considered the DUI offen se.

3 The indictment recite

d the following prior convictions for DUI: (1) February 26, 1990, in t he General Sessions

Court of Shelby Count y, Tennessee; (2) Novem ber 15, 1 991, in the J ustice Cour t of Yalob usha Cou nty, Mississipp i; (3) March 4, 1994, in the General Sessions Court of

Fayette County , Tennessee.
-2- In November of 19 99 , the Appellant, Mark A. Scarborough, was indicted by a Hickman County Grand Jury upon charges of (1) driving under the influence, fourth offense; 1 (2) driving on a revoked licen se, second of fense; and (3) violation of the open container law. On February 24, 2000, a jury fo und th e Appe llant guilt y of DUI. 2 Following his DUI conviction, the Ap

pella n t waived his right to

a jury and a

greed to submit th

e issue of enhanc

ed punishment to the

court. 3 The trial court found the Appellant guilty of DUI, third off

ense. The “Verdict Order” included in the record states a

s follows: Defendant

is sentenced to 11/29 at 75% to serve 180 days day for day in Hickm

a n County Jail redu ced t o 15 0 da ys if Defendant has made arrangements to attend a 30 day in-patient treatment program before reporting on 3-24-00. Driving privileges are suspended for 4 y

ears. On March 13, 2000, the Appellant filed a motion for new trial, which was heard and later denied by the trial court. The trial court did, however, modify its original ruling and found that the prior 1991 conviction fo

r DUI in Mississ

ippi should

not have been admitted

because it “could not be satisfied that the Mississippi conviction complied with the r equirements of the laws of this State.” Thus, the tr ial co urt re duced the Ap pella nt’s c onvic tion from t hird o ffens e DUI t o second offense DUI. Although the trial court ordered that the fine and sentence remain the same, the court did reduc e the suspension of the Appellant’s driving privileges from four year s to two years. On appea l, the Appellant asserts that t

he trial court er

red in failing to

reduce his sente

nce when it reduc

ed his conviction from third offense DUI to second offense DUI

. The "technical" record submitted by the Circuit Court Clerk of Hickman County contains the notation: “There was no c ourt reporter in

this case theref

ore no transcrip

t w ill be s ent.” Also conspicuously

absent from the record is the trial court’s hearing following the jury trial on the issue of enhanced punishm

ent, the Appellan

t’s s ente ncing hearing, and the Appellant’s motion for new trial4 Interes tingly, Trial Exhibit Fi

ve consists of t

he Appellant’s “Stat

e of Tennessee Department of Safety” dr iving record wh ich reflects seventeen v arious licensing infraction s. -3- which resulted in modification of his DUI conviction. In sum, other than five exhibits introduced at trial, no evidence is included in the record. 4
In his brief, the Appellant requests this co urt to “ reduce the per iod of confinemen

t in Appellant’s sentence from 180 [days], which is one and one-half times the minimum for third offense, to 67 da ys, which is o

ne and one-half

times the minimum for second offense .” We decli n e application of

the Appellant’s proposed mathematical sentencing formula. The sentencing laws of this state require thi

s court to conduct a de novo review on the record when a defendant’s sentence is challenged on appeal. Sentencing Com mission Comm ents, T ENN . C ODE A NN . § 40-35-401(d). De novo review entails

examination of those same facts as considered by the trial court including the evidence at trial, the evidence at the sentencing hearing, the nature and characteristics of the criminal conduct involved and enhancing and mitigating factors. T ENN . C ODE A NN . § 40-35-210 (b)(1)(4)(5). The record in

this case is devoid of such factual informa tion. When no repor

t, recital or tra

nscript is available, the Appellant has a duty to prepare a statement of

evidence “fro

m the best availab

le means, including the appellant’s recollection.” See T ENN . R. A PP . P. 24(c). The Appe llant failed to mee

t this requirement. We ha ve repeate dly held that failure to include the transcript of the trial court proceedings in the record prohibits this court from conducting a meaningful de novo review. In the absence of a transcript of the proceedings relevant to an issue presented for review, the appellate court is precluded from considering the merits of the issue. See T ENN . R. A PP . P. 24(b). If the appellate record is inadequate, the reviewing court must presume that the trial court ruled correctly. See State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). The obligation of preparing a complete and adequate record for the issues presented on appeal rests upon the appealing party. See T ENN . R. A PP . P. 24(b). For this reason, the issue is waived.

CONCLUSION Because the appellate record was incomplet e upon appea l, we must presume the trial court rul ed correctl

y. Accordi

ngly, the a

ppeal is dismissed a

nd the judgment of

the Hickman County Circuit Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE