IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 26, 2013

STATE OF TENNESSEE v. JAMES A. ADKINS

Appeal from the Criminal Court for Sullivan County

No. S60646 Robert H. Montgomery, Judge

No. E2012-02615-CCA-R3-CD - Filed July 24, 2013

The Defendant, James A. Adkins, entered a best-interest plea of guilt to driving while

declared a motor vehicle habitual offender, failing to obey a traffic-control device, violation

of the financial responsibility law, and reckless aggravated assault. The trial court ordered

the Defendant to serve an effective sentence of six years in the Tennessee Department of

Correction. The Defendant appeals, asserting that the trial court erred when it denied his

request for alternative sentencing. After a thorough review of the record and applicable law,

we affirm the trial court’s judgments.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and ROGER A. PAGE, JJ., joined.

William A. Kennedy, Blountville, Tennessee, for the appellant, James A. Adkins.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney

General; Barry Staubus, District Attorney General; and Amy Hinkle, Assistant District

Attorney General for the appellee, State of Tennessee.

OPINION

I. Background and Facts

A Sullivan County grand jury indicted the Defendant for driving while declared a

motor vehicle habitual offender, failure to obey a traffic-control device, violation of the

financial responsibility law, and reckless aggravated assault. On September 4, 2012, the

Defendant entered a best interest plea of guilt to each of the indicted offenses. The trial court

sentenced the Defendant to six years as a Range II offender. A transcript of the guilty plea

hearing is not included in the record on appeal. The presentence report contains the
following recitation of the affidavit of complaint against the Defendant:

On 12-30-11 at 19:34 hours, I responded to a motor vehicle crash on N.

Eastman Rd @ Jack White Dr. Upon arrival I worked the crash, see KPD

Report #11-023008. While working the crash it was determined the driver of

the Chevrolet Blazer that was involved in the crash, ran the red light, had no

vehicle insurance and had been declared a habitual motor vehicle offender in

Tennessee. A check of the driver’s license, confirmed that [the Defendant] is

revoked and been declared a habitual offender. During the crash, [the

Defendant] ran the red light on N. Eastman Rd @ Jack White Dr and crashed

into another vehicle causing injury to a passenger in the other vehicle. [The

Defendant] admitted to running the red light and did apologize to officers on

scene. [The Defendant] was arrested and transported to city jail.

The Defendant provided the following statement, on September 20, 2012, for the presentence

report:

Friend of mine called me more like a brother to me. To come and pick him up

to take to motel or he was going to go to jail. Stopped at red light. Was

looking in rearview mirror talking to kid. Foot slipped off break [sic].

Stomped the gas. Started to turn and froze. I try to stick around to make sure

every one was alright. Moved my car. But officer wouldn’t let me to stay to

make sure everything is ok. Ask officer if I could call to see if every one was

alright. They said no. They said not to have contact with them. I felt very bad

because it happened. And I am very sorry about it. Still feel bad about it.

On November 30, 2012, the trial court held a hearing to determine the manner of

service of the six-year sentence. The parties submitted the presentence report and presented

no further evidence. The Defendant’s criminal record contained in the presentence report

spans seven pages. The Defendant’s first offense was in 1985 when the Defendant was

nineteen years old. He received his first driving under the influence conviction in 1986, at

age 20. Between 1987 and 1994, the Defendant was convicted of sixteen offenses including:

marijuana possession, public intoxication, driving with a revoked license, and driving under

the influence-second offense. On May 13, 1994, the Defendant was declared a motor vehicle

habitual offender. Thereafter, the Defendant continued to accumulate convictions for drug

and alcohol-related offenses such as public intoxication and marijuana possession. The

Defendant was also convicted on three occasions, in 1997, 1998, and 2002, of driving while

under the restrictions of the Motor Vehicle Habitual Offenders Act. In connection with the

2002 violation, the Defendant was convicted of driving while under the influence. The

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presentence report also reflects the Defendant’s violation of probation on three occasions:

January 10, 2008, July 9, 1998, and October 3, 1997. After the October 3, 1997 probation

violation warrant was issued, the Defendant absconded from probation.

The Defendant requested the trial court order his sentence to be served in community

corrections. After considering the evidence, the presentence report, and the principles and

purposes of sentencing, the trial court denied the Defendant an alternative sentence and

ordered him to serve his sentence in the Tennessee Department of Correction.

In pertinent part, the trial court stated the following:

[The] enhanc[ement] factors, primarily because of the extensive criminal

history outweighed the mitigating factors. He does have a long history of

criminal behavior, . . . past efforts of rehabilitation have failed. And the real

problem in this case is not that it was just one of those things where he was

out driving and . . . didn’t have a license because he’d been [declared] a

habitual offender. I mean this was a situation where he’s had three prior

convictions for being a habitual offender. There was a crash in this case, an

individual was hurt and I mean he’s had - - - the statute was set up for those

individuals that are more serious offenders to comply and it appears to me

that he’s just not somebody that’s going to comply with what the Court asks

him to do and an order not to drive is a pretty straightforward order and it

wasn’t like this was an emergency or anything like that. So in my opinion,

based on all those factors, that it’s not appropriate for me to place him on

probation or alternative sentencing so I’m going to order him to serve his

sentence, 6 years.

It is from this judgment that the Defendant appeals.

II. Analysis

As we previously noted, the Defendant failed to include a transcript of the guilty plea

submission hearing in the record on appeal. It is the Defendant’s duty to prepare a record

that conveys “a fair, accurate and complete account of what transpired with respect to the

issues which form the basis of the appeal.” Tenn. R. App. P. 24(b). “[W]hen a record does

not include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should

determine on a case-by-case basis whether the record is sufficient for a meaningful review

under the abuse of discretion with a presumption of reasonableness standard adopted in

Bise.” State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012); see State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). “[T]he mere fact that the transcript of the submission hearing was

not made a part of the record on appeal should not preclude review.” Id. Tennessee Rule of

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Appellate Procedure 24(e) authorizesthis Court to ordersupplementation of the record where

necessary. Not every case in which an appellant fails to provide a plea submission hearing

transcript necessitates supplementation. Id. Rather, supplementation should be considered

on a case-by-case basis and “should be ordered only if the record is otherwise inadequate to

conduct a meaningful appellate review on the merits of the sentencing decision.” Id. If the

appellate record “is adequate for a meaningful review, the appellate court may review the

merits of the sentencing decision with a presumption that the missing transcript would

support the ruling of the trial court.” Id.

While inclusion of the guilty plea submission hearing transcript is preferable, based

upon the specific facts of this case, we conclude that the record is adequate to afford

meaningful review under the Bise standard without supplementation of the guilty plea

transcript. Accordingly, we turn to review the issue presented by the Defendant on its merits.

The Defendant arguesthat the trial court erroneously denied the Defendant alternative

sentencing. While he acknowledges his “significant number” of prior criminal convictions,

he asserts that his last criminal conviction was in 2006. He further asserts that his gainful

employment since 2001 qualifies him as a proper candidate for alternative sentencing. The

State responds that the trial court properly considered the Defendant’s lengthy history of

criminal activity and substance abuse in denying alternative sentencing. We agree with the

State.

In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” Bise, 380 S.W.3d at 682. A finding of abuse of discretion “‘reflects that

the trial court’s logic and reasoning was improper when viewed in light of the factual

circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer,

45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

To find an abuse of discretion, the record must be void of any substantial evidence that would

support the trial court’s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978);

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should

uphold the sentence “so long as it is within the appropriate range and the record demonstrates

that the sentence is otherwise in compliance with the purposes and principles listed by

statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court sentences within the

appropriate range and properly applies the purposes and principles of the Sentencing Act, its

decision will be granted a presumption of reasonableness. Id. at 707.

Recently, our Supreme Court extended the Bise standard to appellate review of the

manner of service of the sentence. The Court explicitly held that “the abuse of discretion

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standard, accompanied by a presumption of reasonableness, appliesto within-range sentences

that reflect a decision based upon the purposes and principles of sentencing, including the

questionsrelated to probation or any other alternative sentence.” Caudle, 388 S.W.3d at 278-

79. We are also to recognize that the defendant bears “the burden of demonstrating that the

sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

In determining the proper sentence, the trial court must 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 mitigating and enhancement factors set out in Tennessee Code Annotated

sections 40-35-113 and -114; (6) any statistical information provided by the administrative

office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any

statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.

§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial

court must also consider the potential or lack of potential for rehabilitation or treatment of

the defendant in determining the sentence alternative or length of a term to be imposed.

T.C.A. § 40-35-103 (2010).

With regard to alternative sentencing, Tennessee Code Annotated section 40-35-

102(5) (2010) provides as follows:

In recognition that state prison capacities and the funds to build and maintain

them are limited, convicted felons committing the most severe offenses,

possessing criminal histories evincing a clear disregard for the laws and morals

of society, and evincing failure of past efforts at rehabilitation shall be given

first priority regarding sentencing involving incarceration.

A defendant who does not fall within this class of offenders, “and who is an especially

mitigated offender or standard offender convicted of a Class C, D or E felony, should be

considered as a favorable candidate for alternative sentencing options in the absence of

evidence to the contrary.” T.C.A. § 40-35-102(6). Generally, defendants classified as Range

II or Range III offenders are not to be considered as favorable candidates for alternative

sentencing. T.C.A. § 40-35-102(6). Additionally, we note that a trial court is “not bound”

by the advisory sentencing guidelines; rather, it “shall consider” them. T.C.A.§ 40-35-102(6)

(emphasis added).

Even if a defendant is a favorable candidate for alternative sentencing under

Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative

sentence because:

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(A) Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective deterrence

to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant.

T.C.A. § 40-35-103.

The Defendant, a Range II offender, is not presumed a favorable candidate for

alternative sentencing, and he has not carried his burden of demonstrating that he is a proper

candidate for alternative sentencing. The Defendant’s criminal history began at age nineteen

and continued to his current offense age of forty-six. The Defendant has previously failed

to comply with the conditions of probation sentences and once absconded from a probation

sentence. The Defendant, after being declared a motor vehicle habitual offender, drove a

vehicle while uninsured and unlicensed, ran a red light, and hit another vehicle. A passenger

in the other vehicle was injured as a result of the Defendant’s conduct. The record supports

the trial court’s determination that confinement is necessary based on the Defendant’s

lengthy criminal history. The trial court also properly concluded that confinement is

necessary to avoid depreciating the seriousness of these offenses and because of the

Defendant’s repeated failures to comply with previous sentences involving release into the

community.

Accordingly, the trial court followed the purposes and principles of the Sentencing

Act when it applied a sentence within the appropriate sentencing range and the trial court

acted within its discretion when it denied alternative sentencing. The Defendant is not

entitled to relief.

III. Conclusion

In accordance with the foregoing reasoning and authorities, the judgments of the trial

court are affirmed.

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ROBERT W. WEDEMEYER, JUDGE

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