# FILED
October 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JA CKSON AUGUST SESSION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 02C01-9607-CC-00236 ) Appellee, ) ) DYER COUNTY ) V. ) ) HON.JOE G. RILEY , JUDG E BARRY JORDA N, ) ) Appe llant. ) (VOLUN TARY M ANSLAU GHTE R)

FOR THE APPELLANT : FOR THE APPELLEE : G. STE PHE N DAV IS JOHN KNOX WALKUP Distri ct 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, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 C. PHILLI P BIVENS Distri ct Attor ney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Barr

y Jordan, appeal s as of right pursuant to Rule 3 of the Tennessee Rule s of App ellate P roced ure. Fo llowing a jury tria l in the C ircuit Court of Dyer County, the Defenda nt was found guilty of voluntary manslaughter and was s enten ced to five (5) ye ars in prison as a Ran ge I stand ard offen der. In his sole issue on appeal, Defendant argues that the sentence i mposed by the tri al court wa s exces sive. W e affirm the judgm ent of the tria l court.

When an accused chall enges the lengt h, 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 determinati ons made by the trial co urt are correct. Tenn. Code Ann. § 4 0-35-40 1(d). T his presumption i s "condit ioned upon the affirmative showing in t he record that the tri al court considered thesentencing principl es and all rele vant facts a nd circum stance s." State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence, t his court must consider: (a) the eviden ce, if an y, rece ived at th e trial an d the s enten cin g he aring; ( b) the presentence report; (c) the principles of sent encing and arg umen ts as to sentencing alternat ives; ( d) the nature and characteristi cs of the criminal conduct involved; (e) any statutor y mitigating or

enhancement factors; (f) any statement that the defen dant m ade on his own b ehalf; and (g) the p otentialor lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).-3- If our revi ew reflect

s that thetrialcourt fol lowed the st atutory sentencing procedure, imposed a lawfulsentence aft er having gi ven due considerat ion and properweight to the factors and p rincipa ls set out under the sentenci ng law, and that the trial court's findings of fact are adequately su pported by the recor d, then
we may no t modify th e sentence even i f we would have pr eferred a di fferent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Voluntary manslaughter i s 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 pres umptive sentence for a C lass C felony is the minimum in the range i f the re are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). Should t he trialcour t fin d mitigat ing and
en hancem ent factors, it must start at t he minimum sentence in t he range and enhance the sentence base d up on any applicable enhancement fact ors, then reduce the sentence based upon any appropriate mitigati ng factors. Tenn. Code Ann. § 40-35-210(e). In applyi ng a five year sentence, t he trial court in this case used the foll owing tw o enha ncem ent factors : (1) the victim was trea ted with
exce ptional cruelty ; and (2) Defe ndant used a deadly weapon to com mit th e offense. See Tenn. Code Ann. § 40-35-11 4(5) and (9). Th e trial court also found the following two misc ellaneous m itigating factors applicab le: (1) no pri or felony convicti on; and (2) a rel ativel y good work recor d. See Tenn. Code Ann. § 40-35- 113(13 ).
The weight given to eac h factor is wit hin the trial court’s discr etion provided that the record suppo rts its finding s and it compli es with th e Sentencing Act. See State v. Mars hall , 87 0 S. W.2d 5 32, 541 (Ten n. C ri m. App. 19 93), perm .-4-

to appeal denied (Ten n. 199 3). Th e trial co urt, how ever, s hould mak e spe cific findings on the record which indicate his applicati on of the sentencing princi ples. Tenn. Code Ann. §§ 40-35-209 and -210.

With regard to the enh ancem ent and mitigati ng factors, thi s Court must deferto the fi ndings of t he trialjudge since no tr anscript of the tri al proceedi ngs is contained in the record. The re is no pro of before t hi s Court as to the nature of this crime or how i t was committed. We are neitheraware o f the spec ific facts that led the t rial j udge to find t hat the crime was e special ly cr uel, no r are we aware of what ty pe of weapon thi s Defendant used i n t he com mission of t he crime. This Court must make deci sions based on matt ers withi n the record and not outsi de of the reco rd. Wh en a pa rty seeks appellate review the re is a duty to prepare a recor

d which conveys a fair, accurate and complete account of what transpir ed with respe ct to the issues f orming the basi s of the appeal. If the record is incomplete, this Court is precl uded from consider ing t he issues ra ised. W e mu st conclusively presume that the determinat ion of thetrialcourt was cor rec t regarding the weight to be afforded both the enhance ment factors and mitigat ing factors. State v. Locust , 914 S.W.2d 554, 557 (Tenn . Crim. A pp.199 5); see also State v . Matt hews , 805 S.W .2d 776 , 784 (T enn. C rim. App . 1990).

In reviewi ng the sentenci ng considerat ions of Tennessee Code Annotated section 4 0-35-103 , the tr ial court found that in this

case confinement was
necessa ry to avoid deprec iating the seriousn ess of “this particular hom icide.” It is clear that

the tri al court made i ts decisi on bas ed on th e particula r facts surrounding this part icular c rime. Again, since the r ecord on appeal does not-5-

include the trial transcript and i s for that reason i ncomplete, this Court must conclus ively presu me tha t the judgm ent of the tria l court is corre ct.

We therefore affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge