### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 4, 2 003 STATE OF TENN ESSEE v. ROBERT J. WILLIAMS Appeal from the Circuit Court for Henry County No. 13255 Julian P. Guinn, Judge

No. W2002-02366-CCA-R3-CD - Filed April 14, 2003

The defenda

nt, Rober t J. Williams, pl ed guilt

y in the Henr y County Circuit Cou

rt t o one co unt of selling one-half gram

or more o f cocai ne, a Cla ss B felon y, a nd two cou

nts of selling less than onehalf gra m o f co cai ne, a Cl ass C fe lo ny. A s a R ang e I, standard offender, he rece ived one eight-year sentence and two three-y ear sentences to be served concurr ently as one y ear in confinement and the remainder

in a community corre ctions program. The defendant

appeals, claiming that his sentences are excessive. We affirm the defendant’s sentences, but we r emand the case for entry

of corrected judgmen ts. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed as Modified; Case Remanded
J OSEPH M. T IPTON , J., deliver ed th e opinio n of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. Benjamin S. Dempse

y, H untingdon, Tenne ssee, fo r the app ellant, Ro

bert J. Willia

ms. Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; G. Robert Ra

dford, D istrict At

torney Genera l; and Stev en L. Garret

t, Assis tant Distr

ict Attorney General, for the appellee, State of Te nnessee. OPINION
The record reflects that the defenda nt sold cocaine to an undercover police officer on Ma rch 23, March 27, and May

10, 2001. Noth

ing more is known a

bout the f acts in thi s case

because the defendant didnot include the guilty plea he aring transcript in the record on appe al and no witnesses testified at

the se ntenc ing hea ring. Accord ing to the present ence re port, the then thirt y- five-y ear-ol d defe ndant graduated from high school and w orked for sixteen yea rs in the lawn and l andscap in g business. In the report, the def endant statedthat

he suffered from ulcers and bac k problems and that he started using cocaine when he was twenty -eight y ears old. He stated that he had completed a drug treatment program in 1990 and had not used cocaine since the early 1990’s. The report reflects that1 The legislature ’s 200 2 am end men t to Tenn. Code Ann. § 40-35- 114 added as the new en hance ment fact or (1)

that t he “offense was an ac t of terro rism” b ut chan ged the existing enhan cem ent facto rs only in inc reasing their designating number

by one . Thus , f

ormer e nhanc ement

fac tor ( 1) is now enh ancemen t f actor (2) a nd fa ctor

(8) i s now factor (9). -2- the defendant is single and has no children. The rep ort also shows that the defendant has prior convictions for aggravate d burglary , sexual battery, misdemean or th eft, possession of drug paraphernalia, and a traffic offense.
Before the sentenc ing hearin g, the defendant requested some form of alterna tive sentence and filed a list of mitigating factors for the trial court to consider . The defendant requested that the trial court consi der th e foll owing:

(1) The defendant’s criminal conduct neither ca used nor thre ate ned se ri ou s b od il y in

ju ry;
. . . ; (4) The defendant play

ed a minor role in the commission of the offense;

. . . ; (11) The def

endant, a lthough g uilty of a cri me, commit

ted the of fense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct; [and] (12) The defendant acted under dure ss or under the do mination of another perso n, eve n tho ugh the duress or the domination of another person is not sufficient to constitute a defense to the crime[.]
See Tenn. Code Ann. § 40-35-113(1), (4), (11), and (12). At the sentencing hearing, the de fendant also noted to the trial c ourt that h is pleading guilt

y ha d saved th e state th e expense of going to trial. See Tenn. Code Ann. § 40-35-113(13).
In sentencing the defendant, the trial court noted that t he range of pun ishm ent fo r a Ran ge I o ffender is ei gh t t o t we lv e ye ar s f or a C la ss B f el on y an d t hr ee to si x ye ar s f or a C la ss C f el on y. See Tenn. Code Ann. § 40-35-112(a)(2), (3). The tr ial court determined that enhancement factor (1), that the “defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary

to establish the appropriate range,” a nd factor ( 8), th at the “d efenda nt has a previoushistory

of unwilli ngness to comply withthe conditions of a sentence involving releas e in the community,” applied. See Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001) (amended 2002). 1 However, the trial court chose not to enhance the defenda nt’s sentences. The trial court statedthat-3-

no mitigating factors applied and sentenced the defendant to concurrent sentences of eight ye ars for the selling one-half gram or more of c ocaine conviction and three y ears for each of the selling less than one-half gram

of coca ine convi ctions. Th

e trial c ourt also

ordered that the defendant serve one year of his effective eight-y

ear sentence in confinement with the r emaind er to be served in a community

corrections prog

ram. The defendant claims tha t he r eceived an excessive sentence. Although his brie f cites extensively

to statutory and case

law regarding

sentencing in Tennessee, the only argument he

makes in support

of his cla im is as fol lows:
Th e trial court failed to consider and review on the recor d Defendant’s Mitigating Factors. The trial court e rred in senten ci ng without establishing a sufficient record to reflect evaluation of t h e required sentencing criteria. Also, the tri al court sen tenced Defendant ex ce ss iv el y, and differently from others similarly cha rged, each o f whom received

sentences of 8 y ears, split to 180 days of confine ment. Ac co rd in gl y, Defenda nt requests that his case be remanded for re

sente ncing.
The state claims that the defendant has waived the issue because his “ argument consists of little more than vag ue conc lusory

statemen ts.” I n the alte rnative , the state

claims that

the trial court pr operly sentenced the defendant. We conclude that the de fendant is not entitled to relief. App ellat e review o f sentencing is de novo on the record with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comments to this section note, the burden is now on the de fendant to show that the sentence is improper. This means that if the trial court followed thestatutory sentencing procedure, made findings of f

act t hat are adequately

supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were pr eferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In conducting our de novo review, we must consider (1) the evidence, if any , received at the trial and sentenci ng he aring, (2) the presentence report, (3) the principles of sentencing a nd argume nts as tosentencing alternatives, (4) the nature and characteristics of

the crimi nal condu ct, (5) any mitigating

or statuto

ry enhanc ement fa

ctors, (6) any state

ment that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Statev. Ashby , 823 S.W.2d 1 66, 168 (T enn. 1991 ); State v. Mo ss , 727 S.W.2d 229, 236-37 (Tenn. 1986).
Ini ti al ly, we note that any

evidence presented at

the guilty plea he aring should be considered in determining the app r opriate sentence. See Tenn. Code Ann.§ 40-35-210(b)(1). However, the defendant has failed to include in the record on appeal a tra nscript of the g uilty plea hearing relating-4-

to his conviction. It is the duty of the def endant to prepare a fair, ac curate, and complete record on appeal to enable meaningful appellate revie w. T.R.A.P. 24. This co urt has rep eatedly he ld that failure to include the transcript of the guilty plea hearing in the record pr ohibits the c o urt’s conducting a meanin gful de novo review of the sente nce. Ab sent t he guil ty plea he aring, in which facts are presented, we may pre sume that the defendant’s sentences are justified. See, e .g. , State v. Keen , 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). In any event, the record

before us support s the trial court’s determination.
Without any

underlying

facts regarding the

defendant’s convictions in the appellate record, we cannot determine whether the mitigating factor s he filed before the sente ncing hearing

apply in this case. Mo

reover , althoug

h a defe ndant’s s aving th

e state the expense of

a trial ma y be properl y applied as a mitigating factor pursuant to Tenn. Code Ann. § 40- 35-113 ( 13), in light of his prior criminal convictions, we do not believe the trial court’s application of that factor would have reduced the defendant’s sentences. Finally , the defendant has presented nothing to support his claim that the trial court sentenced him differently than other defendants convicted of similar crimes.
We note that

each judgment of conviction shows that the defenda ntwas sentenced to a term of yearsin the Department of Correction (DOC) and then shows a community corrections sentence plus one year con

finemen t. A commun

ity c orrect

ions sente

nce is me ant to be used ins tead of a sentence to a state penal institution. SeeTenn. Cod e Ann. § 40 -36-106( e)(1). The judg ments should notreflect sentences to the DOC. Moreover, in the appropriate case, a defendant may

be given as much as one year of

shoc k confinement as a condition of a community corrections sentence. See Jimmy D. Johnson , No. 03C01- 9602-CC-0 0062, Blo unt County

(Tenn. Cr

im. App. Oct. 16, 1997); see also Tenn. Code Ann. § 40-36-302(b). Th us , f or th e C la ss B f el on y, the defendant received an eight-y ear community corrections sentence consisting of one yea r in confinement and

seven yea

rs in a community corrections program. For each Class C felony , he received a three-y ear community corrections sentence consisting of one y ear in confinement and

two years in a

community corrections progra m. Based upon the foregoing and the record as a whole, we affirm the sentences imposed by the trial court, but we remand the case for e ntry of corr

ected judgments consistent with this opinion.

___________________________________ JOSEPH M. TIPTON, JUDGE