# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 03-C-01-9701-CR-0 0039 ) ) Unicoi County v. ) ) Lynn W. Br own, Judge ) ) (Sentencing) KEITH BANNER, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Frederick M. Lance John Knox Walkup Attorney at Law Attorney General & Repor ter 804 West Market Street 500 Charlotte Avenue Johnson City, TN 37501 Nashville, TN 37243-0497 Timothy F. Behan Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601 Lisa D. Rice Assistant District A

ttorney General Unicoi County Courthouse Erwin, TN 37650

OPINION FILED:_______________________________
AFFIRMED Joe B. Jones, Pre siding Judge1 This court use s the name o f the defendant alleged in the indictment. The

indictment

alleges thename of “Keith Banner.” The face of the technical record stat es the defendant’s name is “Edward Keith Ban ner.” The defendant testified his name is “Edward Keith Banner.” These names refer to the same person.

2 The trial court revoke

d the defendant’s privileg e to operate a motor vehicle for

ten (10) years incident t

o the conviction for driv ing while under the i nfluence. 2 

## O P I N I O N

The appellant, Keith Banner1 (defend ant), was c onvicted of drivi ng und er the influence of alcohol, third offense, a Class A misdemeanor; driving while license rev

oked, third offense, a Class A misdemeanor; escape,a Class A misde meanor; and a violation of the implied consent law following his pleas of guilty to these offenses. There was no agreementregarding the punishment to be imposed by the trial court. The trial court imposed the following sentences at the conclusion of the sentencing hearing: (a) a fine of $1,100 and confinementfor eleven months and twenty -nine days at 100 percent for driving while under the influence of alcohol, third offense, (b) eleven mo nths and twenty-nin e days at 75 percent for driving while his license was revoked, third offense, (c) eleven months and twenty

-nine da ys at 75 percent for escape, and (

d) rev ocation of t he d efendant’s privilege to operate a motor vehicle forsix (6) months for v

iolation of implied consent. 2 The trial court ordered all of the sentenc es to be servedconsecutively. The defendant presents two issues for review . He cont ends (a) the trial court failed to foll ow the Criminal Sentencing Reform Act of 1989 and evaluatethe enhancement or mitigating factors, and (b) the trial court abused it s discretion by req uiring the sentences to b e served
consecu tively. In short, the defendant contends the sentences imposed by the trial court
were excessive. After

a thorough review

of the record, the briefs submitted by the parties, and the law governing these issues, it is this court’s opini on the judgment of the trial court should be affirmed. A presentence report was prepared, and it was considered by the trial court. The parties referred to the presentence repo rt during the hearing. However, the presentence repor t was not made a part of the recor d transmitted to this court.A transcript of th e submission hearing was apparentl y not memoria lized as the record does not contain a transcription of this hearing. A transcr ipt of the sentencing hearing is contained in the3

record. The failure to plac e t he presentence report in the r ecord prevents this cour t from reviewing

sentencing issues. State v. Wayne Eugene Boring , Knox County No. 03-C-01- 9307-00244, 1994 WL 41331 (Tenn. Crim. App., Knoxville, February 9, 1994). See State
v. Beech , 744 S.W.2d 585, 588 (Tenn. Crim. App.), per . app . denied (Tenn. 1987); State
v. Ronnie Gordon , Davidson County No. 01-C- 01-9 507-CR-00231, 1996 WL 465518 (Tenn. Crim. App., Nashvil le, August 16, 1996). Also, the failure to i nclude a transcript of the submission hearing prevents this court from reviewing sentencing is s ues. State v. Jennifer Ann King , Madison County No. 02-C-01-9510-CC-00327, 1996 WL 55 1756 (Tenn

. Crim. App., Jackson, September 30, 1996); State v. Ollie G. Garr ett , Shelby County No. 02-C-01-9404-CR-00057, 1994 WL 568417 (Tenn . C rim. App., Jackson, October 19, 1994). See State v. Bunch , 646 S.W.2d 158, 160 (Tenn. 1983); State v. Garvin Shepherd , Davidson County No. 0 1-C-01 -9409-CC-00322, 1995 WL 256677 (Tenn. Crim. App., Nashville, May 4, 1995). The absence of these matters prevent s this court from conducting
a de novo review of the record pursuant to Tenn. Code Ann. § 40-35- 401(d). It is important that this court have and consider all of the facts and circumstances consider ed by the trial court in reaching its

decision. This court has reviewe d the sentencing hearing transcript to determine if the trial court abused its discretion by i mposing excessive sentences. Based upon the content of the transcript, the tri al court did n ot abuse its discretion. The appellant has a lengthy record of misdemeanor and felon y convictio ns. He was af forded probatio n on two occasionsand a com munity c orr ections sentence on another occas ion. All three sentences were revoked due to v iolationscommitted by the defendant after being released into the comm unity. He candid ly a dmitted most of his adult life has been spe nt in jail awaitin g trial or serving the sentences imposed by the t rial courts. This incl ude s bein g sentenced to the Department of Co rrectio n while he was a juv enile. Unfortunately, the defen da nt is beyond rehabilitation. His continuing to drive a motor vehicle in a highly intoxicated state after his license w as revoked will ev

entually result in a c

ollision and either serious bodily injury or

the death of another. Thus, the trial court properly sentenc ed the defendant to serve the maximum sentence in each case and to serve the sentences4

consecu tively.

____________ _______________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:

______________________________________ PAUL G. SUMM ERS, JUDGE

______________________________________ CURWOOD WITT, JUDGE