IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 18, 2004

STATE OF TENNESSEE v. JIMMY RAY DOCKERY

Appeal from the Criminal Court for Sullivan County

No. S45,847 Phyllis H. Miller, Judge

No. E2004-00696-CCA-R3-CD - Filed November 30, 2004

The defendant, Jimmy RayDockery, appeals the Sullivan CountyCriminal Court’s decision to deny

probation on his two-year sentence for attempt to fraudulently obtain a controlled substance. Based

on our review of the record, we affirm the judgment.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and

ALAN E. GLENN, JJ., joined.

John D. Parker, Jr., Kingsport, Tennessee, for the Appellant, Jimmy Ray Dockery.

Paul G. Summers, Attorney General & Reporter; Kathy D. Asligner, Assistant Attorney General; H.

Greeley Wells, Jr., District Attorney General; and Barry P. Staubus and Carey Taylor, Assistant

District Attorneys General, for the Appellee, State of Tennessee.

OPINION

The defendant pleaded guilty to an attempt to fraudulently obtain a controlled substance, a Class D felony. See Tenn. Code Ann. § 53-11-402(a)(3), (b)(1) (Supp. 2003). Based upon

the allegations set forth in the indictment, the offense emanated from the defendant’s attempt to

obtain Lortab via the use of a bogus prescription. The defendant agreed to a $2,000 fine and a twoyear sentence. The defendant and the state agreed to submit the determination of the manner of

service of the sentence to the trial court. Following a sentencing hearing, the trial court ordered the

sentence to be served in the Department of Correction. On appeal, the defendant claims that the trial

court erred in failing to grant probation. We disagree and affirm the judgment.

When there is a challenge to the manner of service of a sentence, it is the duty of this

court to conduct a de novo review of the record with a presumption that the determinations made by

the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing
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principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the

event the record fails to demonstrate the required consideration by the trial court, review of the

sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly

considered all relevant factors and its findings of fact are adequately supported by the record, this

court must affirm the sentence, “even if we would have preferred a different result.” State v.

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

The mechanics of arriving at an appropriate sentence are spelled out in the Criminal

Sentencing Reform Act of 1989. In the present case, the trial court accepted the range classification

and length of sentence negotiated by the parties, and the court merely determined the manner of

service of the two-yearsentence. In making this determination, the court is required to consider (1)

the evidence, if any, received at the trial and the sentencing hearing, (2) the presentence report, (3)

the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct involved, (5) evidence and information offered by the parties

on the enhancement and mitigating factors, (6) any statements the defendant wishes to make in the

defendant’s behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code

Ann. §§ 40-35-210(a), (b); -35-103(5) (2003).

The defendant is a standard offender convicted of a Class D felony. As such, he is

presumed to be a favorable candidate for alternative sentencing options in the absence of evidence

to the contrary. See id. § 40-35-102(6) (2003). However, this presumption does not entitle all

offenders to an alternative sentence; rather, it requires that sentencing issues be determined by the

facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.

Crim. App. 1987). The presumption of favorable candidacy for alternative sentencing may be

rebutted, for instance, by a showing that confinement may be necessary to “protect society by

restraining a defendant who has a long history of criminal conduct” or that “measures less restrictive

than confinement have frequently or recently been applied unsuccessfully to the defendant.” See

Tenn. Code Ann. § 40-35-103(1)(A), (C) (2003).

In the present case, the defendant claims that he should have been granted full

probation. To be sure, he was eligible for probation. See id. § 40-35-306(2) (2003). However, the

determination of entitlement to full probation necessarily requires a separate inquiry from that of

determining whether a defendant is entitled to a less beneficent alternative sentence. See State v.

Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by State v.

Hooper, 29 S.W.3d 1 (Tenn. 2000). A defendant is required to establish his “suitability for full

probation as distinguished from his favorable candidacy for alternative sentencing in general.” State

v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see Tenn. Code Ann. § 40-35-303(b)

(2003); Bingham, 910 S.W.2d at 455-56. A defendant seeking full probation bears the burden of

showing that probation will “subserve the ends of justice and the best interest of both the public and

the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other

grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).
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In the present case, we are hampered in conducting our prescribed de novo review of

the sentencing determination because the defendant failed to include in the appellate record the

transcript of the plea submission hearing. See, e.g., State v. Linda Gail Philpot, No. M2000-01999-

CCA-R3-CD, slip op. at 2 n.2 (Tenn. Crim. App., Nashville, May 2, 2001); State v. Gibson, 973

S.W.2d 231, 244 (Tenn. Crim. App. 1997); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.

1987). This transcript would have been instructive because during the plea colloquy the court

receives a statement of the facts supporting the proposed conviction. See Tenn. R. Crim. P. 11(f).

A statement of facts rendered pursuant to Rule 11(f) would be helpful in understanding the nature

and circumstances of the offense, and as noted above, information about the nature and

circumstances of the offense is typically essential in adjudicating a manner-of-service sentencing

issue. See Tenn. Code Ann. §§ 40-35-210(b)(4); -35-103(1)(B) (2003). Thus, in the absence of a

full and fair record revealing the bases for the appeal, we must presume the correctness of the trial

court’s determination. State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). The rule is apt

here, where no testimony was presented at the sentencing hearing. The state relied upon a

presentence report, but the trial judge apparently also relied upon personal, historical experience with

the case. We surmise that some of that experience was gained during the plea submission hearing,

the transcript of which we do not have.

That said, we observe that the trial court duly referred to, and relied upon, the

sentencing principles and guidelines. As such, the defendant’s appeal is also hampered by the

statutorypresumption of correctness ofthe sentencing determination. See Tenn. Code Ann. § 40-35-

401(d) (2003). The denial of probation was, in part, based upon the defendant’s prior criminal

record and a previous revocation of his probation on a felony conviction. The defendant received

1997 convictions of possession of a firearm by an intoxicated person, public intoxication, three

counts of theft, and five counts of attempt to commit theft. Significantly, the defendant was also

convicted in 1997 of an attempt to fraudulently obtain a controlled substance, the same type of

offense that is the basis of the sentence now under review. In that 1997 conviction, the defendant

received a probated two-year sentence. The resulting five-year probation was revoked on November

11, 2002, based upon the 2001 filing of drug charges and failure to notify the probation officer of

the defendant’s change of address.

Although the defendant enjoyed the presumption of favorable candidacy for

alternative sentencing, the record reveals two solid bases for overcoming the presumption: (1) that

confinement is necessary to restrain a defendant who has a long history of criminal conduct and (2)

that measures less restrictive than confinement have recently been applied unsuccessfully to the

defendant. See Tenn. Code Ann. § 40-35-103(1)(A), (B) (2003). Thus, based on the record that is

before us, we fail to see any basis that overcomes the statutory presumption of the correctness of the

denial of an alternative sentence.

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JAMES CURWOOD WITT, JR., JUDGE