1 It appears fro m the style of th e br iefs and all of the documents in t he record, with the exception of the indictment, tha t the appellan t's correct name is Kelvin J. C lark. The a ppellant, however, was in dicte d under t he name “Chris Wilson a/k/a Calvi n Clark.” It

is the p oli cy of this

court to sty

le cases accordi

ng to the name in

the formal charging instru ment. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE August 1999 Session STATE OF TENNESSEE v. CHRIS WILSON A/K/A CALVIN CLARK

Direct Appeal from the Circuit Court for Montgomery County

No. 39138, John H. Gasaway, III, Judge
No. M1998-00395-CCA-R3-CD - Filed September 28, 2000
Following a “best interest” plea toone count of agg

ravated burgl

ary, the ap

pellant was sente

nced to a term of five year s in the Departmen

t of Correction. O

n appeal, he challenges (1) the length of the sentence and (2

) the imposition of a

sentence of tota

l confinement. Af

ter review, we a

ffirm. Tenn. R. App. P. 3; Judgm ent of the Circuit

Court is affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY , J. and L. T. L AFFERTY , S R .J., joined. FredW. Love, Asst. Public Defender, Clarksville, TN 37040, for the appellant,Chris Wilson a/k/a Calvin Clark. Paul G. Summers, Attorney General and Reporter , M ichael Moore, Soli citor General,C

linton J. Morgan, Assistant Atto

rney Ge neral, John Wesle y Carney, Jr., Dis

trict Attorney Ge

neral, and C. Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The appellant, Chris Wilson a/k/aCalvin Clark, 1 entered an Alford or “best interes

t” plea in the Mon tgom ery C oun ty Ci rcui t Co urt to o ne co unt of ag grav ate d bu rgla ry, a class C felony. At the sentencing hearing, the trial court imposed a five year s entence in the Tennessee Department of Corre cti on. Defense counsel originally submitted an Anders brief asserting that counsel’s examination of the record reveals no meritorious issues for appellate review. A panel of this court foundcounsel’s attempt at an Anders brief inadequat e and ordered the filing of an advocate’s brief2 See generally State v. Chris Wilson a/k/a Calvin Clark , No. 01C01-9807-CC-00284 (Tenn. Crim. App. at

Nashville,

Mar. 20 , 2000); State v. Chris Wilson a/k/a Calvin Clark , No. 01C01-9807-CC-00284 (Tenn. Cri m. App. at Nashville, D ec. 8, 199 9); State v. Chris W ilson a/k/a Ca lvin Clark , No. 01C01-9807-CC-00284 (Tenn. Crim. App. at Nashville, Aug. 5, 1999). -2- on the merits. 2 Upon the filing of an advocate’s brief, counsel preserved two issues for this court’s de novo review: (1) the length o f the sentence and (2) the imposition of a sentence of total confinement. After review of th

e record before this court, we affirm the sentencing decision of the trial court.
Background The senten cing is sues raised in part by the appellant, i.e. , the appellant’s role in the commission of the off ens e and the ove ral l na tur e and cir cum sta nces of t he ag grav ate d bu rgla ry, are typically submitted to this court in the form of a transcribed guilty plea. In this case, our review is substant iall y

frustrated by the appellant’s failure to include within the record this releva nt information. If the appel laterecord is

inadequate, the reviewing court must presume that the trial court ruled correctly. State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993).
We are provided, however, with the trial court’s thorough findi ngs of f act from the sentencing h earing:

. . . The pres entence report reveals, in part, the following information. That Mr. Clark is 21 years of age. . . . His criminal history . . . is as follows: At the age of 16 he wa s convicted of theft of property in Vernon Parish, Louisiana and placed on juvenile probation. The date of the convictionwas December 3, ‘92. In fact, there wereseveral adjudic

ations that day

. . . they wer

e as follo ws: Vandali sm, unauthorizeduse of a vehicle and apparently there were thre e con victions of unauthorizeduse of a vehicle. Three adjudica

tions I should

say. B efore that D ec ember

3 rd , 1992 date, there is also a juvenile court, Vernon Parish, Louisiana adjudication dated November 1 8, ‘92 adjudicatin g Mr. Clark guil

ty of vanda

lism. That shows juvenile pro

bation as well. Af

ter he was place

d on juvenile proba

tion in December

of ‘92 he n

ext was convicted at theage of 18 in the M ontgomery

County Circuit Court . . . Tennessee. He was convicted on March 8 th , ‘95 of evading

arrest, failing to carry a license on his person . . . . He received a sentence of 11 months, 29 days,on evading ar rest. And h e was also co nvicted in Montgo me ry County . . . of joy ri di ng and he received a sentence of 11 months, 29 day s, which was probated. A nd the dat e of t hat con vic tio n wa s Ja nua ry 5 th , ‘96. He received a sentence of 1 1 mo nths and 29 d ays, which w as probated. He w

as also or next convi

cted in Davidson County of . . . two crimes. And the crime for which he’s being sentenced-3-

to is a crime

of aggravated burglary

that occurred on February 1997. So according to the record here, he received a three year sentence

in Davidson County commencing effectiveApril 26, ‘95. And as I said, the judgment form shows that was a sentence ordered to be served at the regional work house. The offense date of the aggravated burglary tha t he’s being sentence

d for today o

ccurred Febr

uary 1997 w

hich would have been within that threeyear peri od. So he was either on p robation or on some work release status a

t the time this aggravated

burglary was committed. . . . the Court is mindful and has considered to what extent confinement may be nece ssa ry to protect society by restraining

a defendant who has a long history of criminal conduct. Andthe Court does find that he has a long history of criminal conduct. The Court has also considered w

hether confinem

ent is n eces sar y to avoid depreciating the seriousness

of the offense or

whether confine

ment is particular

ly suit e d to provide an effective deterrence to others who may be likely to commit similar offenses. The Courtha s also considered whether there have been measures less restrictive than confineme

nt which have frequently or currently been used unsuccessfully. The Court is also mindful of whether there is a potential or lack of potential for rehabilitation, given the history of this defendant. . . .

. . .The Court finds that [the defendant has a previous history of criminal convictions or criminal behavior

in addition to those n

ecessary to establish the appropriate range] andwill give it the weight to which it is entitled. In this case, the defendant is to be treated as a ran ge one standard offender and given the criminal history in the presentencereport. The Court finds that subsect

ion one applies.

The State maintains that subsection 13 a

pplies, that is

a felony was committed while the defendant was on some form of release status, if such release is from a prior felony

conviction. He was . . . convicted of t

wo felonie s [reckl ess endangerment and fraudulent use of a credit card] on April 26, ‘95 in Davidson County. Two class E felonies which were to be served conse

cutively fo

r an effective

three yea r sentence. And s

o at the ti me this offense, the subject offense, was committed, which was February 1997 . . . it was committed at a

point in time within that three year sentence. So he was either on probation or a work relea

se or some type

of release into th

e community.

So the court fin ds t hat num ber 1 3 do es i nde ed ap ply.

. . . The defendant next argues that subsection t hree applies, that substantial grounds extending to excuse or justify the defendant’s criminal conduct, t hou gh failing to establish a defense. Ther

e is n o evidence to support that contention and the Court fin ds t hat it d oes not app ly. The defense next arg

ues that subsectio

n four applies.That

is, the defendant played a minor role in the commission of the offense. The court is without any evidence

to that affect and the Court finds that doe s no t ap ply. . . . Here is a young man who, at the timehe was 18, soonto b e 19 , he had alr eady b een c onv ict ed o f th eft of p rop ert y,-4-

vandalism, unauthorized use of a veh icl e, multiple counts, another adjudication of vandalism, a conviction for e vading arrest,

joy riding,

reckless endan

germent, fraudulent

use of a credit card, he may have bee n young chronologi cally speaking, butin terms of criminal knowledge he was sophistica ted. The Court finds [this factor] does not apply. So the pres umptive se ntence for a r ange one, class C felony of aggravated

burglary is three ye

ars. Considering

the . . . enhancing

factors as well as the mitigating factors . . . . The Court affixes his actual sentence of five years and orders him to serv

e it at TDOC.
Analysis Appellate review of a sentence

is de novo witha presumption that the determinations made by the sentencing court are

correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption onl y applie s, howev er, if the record shows that the trial court properly considered r elevant sentencing principles. State v. As hb y , 823 S.W.2d 166, 169 (Tenn. 1991). In the present case, the record supports application of

the presumption. Moreover, the burden is upon the appellant to show that the sentence imposed is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35- 401. A. Length of Sentence The app ell ant con ten ds t hat his con vic tio n fo r th e off ens e of a ggra vat ed b urgl ary doe s not warrant a sentenceof five years. The record reflects that the trial court applied three enhancement factors and one mitigating factor. Specifically, the trial court found t he followi ng enhancement factors: (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (13) The felony

was committed while

on any of the following forms of release status if such release is from a prior felony conviction: (C) Probation; (D) W ork rele ase; and (20) The defendant was adjudicated to have committed a delinquent act or

acts as a juvenile that would

constitute a felon

y if committe

d by an adult

. Tenn. Code Ann. § 40-35- 114(1), -114(13) , -114(20) (1997) . Additionall y, the trial court applied mitigating factor (1) (1) The defendant’s criminal conduct neither caused nor threaten ed serious bodily inj ury.3 The appellant admits that had the juven ile adjudications occurred in Tennessee, the adjud ication for vandalism

would co nstitute a class E fe lony. -5- Tenn

. Code A nn. § 40-35-113(1) (1997). Although the appellant concedes application of enhancement

factor (1), he a

sserts that the record fails to support the application of factors (13) and (20). With reference to the trial court’s application of factor (13), we have previously noted the firmly established rule which places the burden upon the appellant to establish the impr opriety of a sentencing ruling. The appellant hasasked us to find facts regarding sentence expiration dates that are not included in the record. We decline to engage in conjecture or speculation as to non-existent facts. In the absenc

e of proof to the c

ontrary, th

e findings of the

trial court are p

resumed correc

t. Based upon these senten

cing principles , we see no reason to disturb the trial court’s application of factor (13). The appellant also challenges application of fac tor (20), the def

endant was adjudi

cated to have committed delinque nt a cts as a juvenile which would constitute a felony if committed by an adult. The appellant co

ntends that his juve

nile adjudication

s w ere for the offense

s of vandalism, unauthorizeduse of a vehicle and theft. Moreover, the adjudications took place in Louisiana and not Tennessee. He argues that there is n o evidence in the record to indicate whether these Louisiana juvenile adjudications would convert to adult felonies in either Louisiana or Tennessee. 3 The record reflects that following juvenile adjudications from Louisiana: Date of Conviction Age Offense 12-03-92 16 Vandalism between $500-$1000 12-03-92 16 Unauthorized use o f a vehicle 12-03-92 16 Unauthorized use o f a vehicle 12-03-92 16 Unauthorized use o f a vehicle 11-18-92 16 Vandalism between $500-$1000 12-03-92 16 Theft under $500
The record is silent as to the circumstances of these offenses. Generally , where the foreign conviction is a named offense

in this state, the cl

assification of th

at named offense

under Tennessee

law will app ly. Cf . Tenn. Code Ann. § 40-35-108(b)(5)(1997). Under our penal code, the offense of unauthorizeduse of a vehicle i s a class A misdemeanor, see Tenn. Code Ann. § 39-14-106 (1997); the offense of va

ndalism between $

500-$1000 is a cla

ss E fel ony, seeTenn. Code Ann. §§ 39-14- 408(c)(1) (1997); 39-14- 105(2 ) (1997); and the o ffense of theft

under $500 is a cla

ss A misdemeanor; Tenn. Code Ann. § 39-14-105(1). Thus, the appellant’s juvenile adjudications for the offen ses of

vandalism betwee

n $500 - $1000 would h

ave been feloni

es if committed as a

n adult. Accordingly, the trial court did not err by applying enhancement factor (20). Mitigating Factors Fin all y, the appellant asserts that the trialcourt f ailed to apply mitigating factor (3), substantial grounds exist

tending to excuse or justify the criminal conduct, and mitigating factor (4),-6-

the defendant play

ed a minor role

in the commission of the offense. Again, in the absence of the guilty plea transcript,

there is no eviden

ce in the record

to support the appe

llant’s all egations that “substantial grounds exist tending to excuse or justify the defendant’s cri minal c onduct,” Tenn. Code Ann. § 40-35-113(3); or that “the defendant played a minor rol e in the commission of the offense.” Tenn. Code Ann. § 40-35-113(4). The appellant also co

ntends that, beca

usehe entered

a guilty plea thereby ta

king the first step towardrehabilitation an

d by saving

the State the time a

nd expense

of a trial by jury, mitigating fac tor (13) should apply. Our general assembly has not expr essly provided that a defendant’s sentence should be m iti gate d ba sed sol ely u pon the defe nda nt’ s pl ea of guil ty. In the absence of a legislative provision so authorizing, we reject carte blanche application of this requested factor. The trial court chose not to mitigate: the sentencing court is in a much better position to determine the defendant’s motive for pleading g

uilty. In deed, in this case

, it is far from certain that the appellant’s guilty plea was entered for the purpose of “taking the first step toward rehabilitation.” I t co uld e qually be argued that the appellant was motivated by the fact

that, under his ple

a agreement,

a charge of rape was reduced to sexual battery, two probation violation charges were reduced to “time served,” and a charge of felon y theft was dismissed. Accordingly, w e find no error in the non-application of mitigating factors (3),(4) and (13). The appel lant, a range I o ffe nde r, w as co nvi cte d ofaggr avat ed b urgl ary, a cla ss C fel ony. The appropriate sentencing range is “not less than three (3) nor more than six (6) y ears.” Tenn. Code Ann. § 40-35-112(a)(3) (1997). The trial court, after weighing and consider ing the enhancing and mitigating factors, imposed a senten ce of five yea rs. Applying

the presumption of

correctness afforded the trial court’s decision, we conclude , upon de novo review, that imposition of a sentence of five years is not excessive. B. Imposition of Total Confinement In his final argume

nt, the appellant contends that the trial court erred by imposing a sentence of t otal confinement. The trial court denied the appellant any form of alterna tive senten ce base d upon its finding that confinement was necessary to protect society by restrainin g a

defendant who has a l ong history of criminal conduct. See Tenn. Code Ann. § 40-35-103(1)(A) (1997). T h e appellant asserts that

the trial court er

red by imposi

ng a sentence o

f total confineme

nt based solely upon his prior criminal history. We disagree. The record indicates that the appellant’s criminal history consists of six adult convictions and six juvenile adjudica

tions. The recor

d is replete

with evidence of numerous failed past attempts at rehabilitation. The presentenc e report notes tha

t “[the appellant] is

currently on ‘escape’ status from a Davidson County Penal

Facility.” The appellant has never attempted to earn either a high school diploma or a GED and has very minimal work experience. Thus, we conclude that confinement

is necessary to protect society by restraining a defendant who has a long history of criminal conduct andmeasure s les s restrictive than confinement have frequently or rece ntly been applied un successfully

to the defendant. See

Tenn. Code Ann. § 40-35-103(1)(A); -103(1)(C). Thes e factors are more than sufficient to support a sentence of totalconfinement. Accordingly, the record-7-

supportsthe trial court’s finding that the State presented s ufficient evidence to overcome the presumption favoring alternative sentencing. For these reasons, the sentencing decision of the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE