FILED

October 28, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9607-CC-00236

)

Appellee, ) 

) DYER COUNTY

)

V. ) 

) HON. JOE G. RILEY, JUDGE 

BARRY JORDAN, ) 

) 

Appellant. ) (VOLUNTARY M ANSLAUGHTER) 

FOR THE APPELLANT: FOR THE APPELLEE:

G. STEPHEN DAVIS JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

208 N. Mill Avenue

P.O. Box 742 CLINTON J. MORGAN 

Dyersburg, TN 38025-0742 Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

C. PHILLIP BIVENS 

District Attorney General

P.O. Drawer E 

Dyersburg, TN 38024

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Barry Jordan, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. Following a jury trial in the Circuit

Court of Dyer County, the Defendant was found guilty of voluntary manslaughter

and was sentenced to five (5) years in prison as a Range I standard offender. In

his sole issue on appeal, Defendant argues that the sentence imposed by the trial

court was excessive. We affirm the judgment of the trial court.

When an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circum stances." State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
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If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Voluntary manslaughter is a Class C felony and a Range I sentence is not

less than three (3) years nor more than six (6) years. Tenn. Code Ann. §§ 39-13-

211(b) and 40-35-112(a)(3). The presumptive sentence for a Class C felony is

the minimum in the range if there are no enhancement or mitigating factors.

Tenn. Code Ann. § 40-35-210(c). Should the trial court find mitigating and

enhancement factors, it must start at the minimum sentence in the range and

enhance the sentence based upon any applicable enhancement factors, then

reduce the sentence based upon any appropriate mitigating factors. Tenn. Code

Ann. § 40-35-210(e). In applying a five year sentence, the trial court in this case

used the following two enhancement factors: (1) the victim was treated with

exceptional cruelty; and (2) Defendant used a deadly weapon to commit the

offense. See Tenn. Code Ann. § 40-35-114(5) and (9). The trial court also found

the following two miscellaneous mitigating factors applicable: (1) no prior felony

conviction; and (2) a relatively good work record. See Tenn. Code Ann. § 40-35-

113(13). 

 The weight given to each factor is within the trial court’s discretion

provided that the record supports its findings and it complies with the Sentencing

Act. See State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993), perm.
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to appeal denied (Tenn. 1993). The trial court, however, should make specific

findings on the record which indicate his application of the sentencing principles.

Tenn. Code Ann. §§ 40-35-209 and -210.

With regard to the enhancem ent and mitigating factors, this Court must

defer to the findings of the trial judge since no transcript of the trial proceedings

is contained in the record. There is no proof before this Court as to the nature

of this crime or how it was committed. We are neither aware of the specific facts

that led the trial judge to find that the crime was especially cruel, nor are we

aware of what type of weapon this Defendant used in the commission of the

crime. This Court must make decisions based on matters within the record and

not outside of the record. When a party seeks appellate review there is a duty

to prepare a record which conveys a fair, accurate and complete account of what

transpired with respect to the issues forming the basis of the appeal. If the record

is incomplete, this Court is precluded from considering the issues raised. We

must conclusively presume that the determination of the trial court was correct

regarding the weight to be afforded both the enhancement factors and mitigating

factors. State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App.1995); see also

State v. Matthews, 805 S.W .2d 776, 784 (Tenn. Crim. App. 1990). 

In reviewing the sentencing considerations of Tennessee Code Annotated

section 40-35-103, the trial court found that in this case confinement was

necessary to avoid depreciating the seriousness of “this particular hom icide.” It

is clear that the trial court made its decision based on the particular facts

surrounding this particular crime. Again, since the record on appeal does not
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include the trial transcript and is for that reason incomplete, this Court must

conclusively presume that the judgm ent of the trial court is correct. 

 

We therefore affirm the judgment of the trial court. 

____________________________________

THOMAS T. W OODALL, Judge 

CONCUR:

___________________________________

DAVID G. HAYES, Judge

___________________________________

JERRY L. SMITH, Judge