# FILED

June 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MAY 1998 SE SSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9709-CC-00395

) ) Blount County v. ) ) Honorable D. Kelly Thomas, Jr., Judge ) JOHNNY K. BLANKENSH IP, ) (Obtaini ng a contro lled subs tance by f orgery) ) Appellant. )
For the Appellant : For the Appellee : Mack Garner John Knox Walkup District Public Defender Attorney General of Tennessee 419 High Street and Maryville, TN 378

04 Todd R. K elley (AT TRIAL) Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North John E. Herbison Nashville, TN 37243-0493 2016 Eighth Avenue South Nashville, TN 37204 Michael L. Flynn (ON APPEAL) District Attorney General and Philip Morton Assistant District A

ttorney General 363 High Street Maryville, TN 378

04

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Johnny K. Blankenship, appeals as of right from his conviction upon a guilty plea in the Bl ount County Circui t Court for obta ining a controlled substance by for gery, a Class D fel ony. The trial court sentenced the defendant as a Range I, standard offender to three years incarcer ation in the custody of the Department of Correction to be suspended and served on probat ion after serving thirty days in the county jail. The trial court also imposed a five hun dred dollar fine. The defendant contends that the sentence imposed is excessive and that the trial court erred by denying full

probation. We affirm the judgment of conviction.

The record reflects that the defendant w as charged with obtai ning hydrocodone by forgery . The record also reflects th at the defendant entered a guilty plea to the offense, although it does no t include a transcript of the guilty plea hearing at which the convicti ng evidence would be presented by stipulation or testimony. A guilty plea hearing often provides an important occasion for the st ate to present its proof, and thus, it is the equivalent of a trial and should be made part of the record on appeal in order to comply wit h T.C.A. § 40-35-210. Also, co unsel’s argument at the senten cing hearing is not included i n the sentencing hearing transcript, a necessary consideration for imposing the specific sent ence and the appropriate sentenci ng alternative under T.C.A. § 40-35-210(b)(3). The defendant must prepare a transcri pt of the evidence as is necessary to conv

ey a fair, accurate and compl ete account of what transpir ed with respect to those issues that are the bases of appeal. T.R.A.P. 24( b).

In any event, the sentence i mposed by the trial court is justified by the record before us. The presentence r eport reflects that the then forty -year-old defendant reported that he committed the offense because he was having tr

ouble with his teeth. He said that a man came up to him in Loudon, told him that he knew tha t the defendant3

was having trouble with his teeth, and asked him if he would like to buy some painkillers for twenty dollars. The defendant stated that he agreed to the offer. He said that the man filled out a prescription in the defendant’s name for twenty hydrocodone and that the man told him to go to Mary ville to get the pres

cription filled. The defendant stated that he took the prescriptio n to a store in Maryv ille and filled the prescr iption.

The presentence report also refle cts that the defendant has a 1979 conviction for second deg ree burglary for w hich he received a sentenc e of three to ten years. The defendant was rel eased on parole after servi ng eighteen months. The report states that the defendant claimed that he did not drink alcohol and that the only illegal drugs that he had used were those inv olved in this case. It

reflects that the defendant stated that he took two tabl ets of the hydrocodone per day . The defendant claimed that he n o longer us ed drugs, and the d efenda nt’s drug s creens wer e negative for the presence of drugs. The pres entence report states that the defendant had worked for the past seve n years for the same employer and that the defendant had maintained employment with other employers previ ously but had been laid off from the jobs.

At the sentencing hearing , the defendant testified concerning the offense. He stated that he had problems w ith his teeth when the offense occur red and that he could not obtain treatment from a denti st unless he was put to s leep because he had a gag reflex. The defendant said that he did not know the man w ho sold him the prescription. The defendant admitted that he knew that the prescription was from Dr. Stimpson, a doctor in Loudon, but that the def endant did not go to Dr. Stimpson. He stated that he obtained ten hydr ocodone pills when he had the prescription filled. The defendant said that he took one pill per day and that he had used all of the pills by the time he was arrested. The defendant claimed that this was t he first time he had forged a prescription to obtain dr ugs.4 The defendant conceded that he had earlier been convicted of being an

accessor y to burglar y in 1978 or 1979. He s aid that Robert Oo dy, his bro ther-in-l aw, was also involv

ed in the offense. He stated that his i nvolvement in the cri me was limited to giving

Oody a ride to obtain a motor cycle part when Oody

broke into a house. The defendant testified that he was rel eased on parole after servi ng eighteen months of his three to ten year sentence and that he completed the parole without any violations.

On cross-examination, t he defendant testified that Oody w as present when he bought the prescr iption from the man and that Oody sho wed him where to get the prescri ption filled . He also co nceded that he knew that h e was commi tting a cr ime and that he might go to jail when he took the prescription to be filled. On redirect examination, the defendant stated that he now knew that he shoul d not associate with Oody as Oody had stolen hi s van about one to two months earlier, resulting

in charges being bro ught again st Oody.

At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to three years. In sentenci ng the defendant, the trial court applied enhancement factor (1), the de fendant had a prior criminal history in addition to that necessary to establish his range of punishment. See T.C.A. § 40-35- 114(1). The trial court denied full probation and instead ordered “a 30-day split confinement.” In denying full probation, the trial cour t stated: The question about ho w to serve th is is not re al easy. I mean, fift

een ye ars working and obey ing the law is w

orth something, but then again, a s t he General said, running a round with the Oody’s i s worth something, too. Of course , you got something from that. . . . Or lost something from it.

The defendant concedes that enhancement factor (1) applies but argues that the trial court shoul d have given littl e weight to the factor beca use the prior5

conviction occurred i n 1979, because the defendant played a mi nor role in the commission of the 1979 offense, and because the defendant c ompleted his parole and had not been in trouble since the 1979 offense other than the present offense. However, the wei ght to be afforded an existing factor is left to the trial c ourt's discretion so long as it complies w ith the purposes and princip les of the 1989 Sentencing Act and its findings are adequatel y supported by the rec

ord. T.C.A. § 40-35-210, Sentenci ng Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169. The weight given to factor (1) is justified by the record before us.

The defendant asserts that the trial court failed to state its findi ngs as to the presence or absence of mitigating factors. He argues that the trial court sho uld have considered in mitig ation that he did not consume painki llers excessiv ely, that he did not obtain the drugs for pecuniary gain throug h sale or distribution, that he had a good work hi story, and that he h ad not co mmitted a crime in f ifteen years. Spe cificall y, he argues that the trial c ourt should have applied se veral mitigating

factors, including factors (2), (3), (7), (11) and (13). See T.C.A. § 40-35-113.

We agree that the record does not reflect the t rial court’s findings relating to the presence or absence of mitig ating factors as requir ed by T.C.A. § 40-35-210. See T.C.A. § 40-35-210, Sentencing Commission Comments. How ever, as stated earlier, the defendant failed to inc lude the guilty plea hea ring and a portion of the transcript providi ng the arguments of counsel r elating to sentencing. It is difficult for us to give proper consideration of the application of the mitigating fa ctors. Without a full record, we may presu me that the trial court proper ly decided not to apply

any mitigating factors. See , e.g ., State v. Oody , 823 S.W.2d 554, 55 9 (Tenn. Crim. App. 1991).

Next, the defendant contends that the trial court erred by denying full probation. Initially, we note that the record before us does not reflect that the trial court6

presumed the defendant to be a favorable c andidate for alternative sent encing options. See T.C.A. § 40-35-102(6). Nor does the record before us reflect th at the trial court found that the presumption in favor of alternative sentencing w as overcome by evidence to the contrary

. See T.C.A. §§ 40-35-102(6) and -103(1)(A)-(C). However, given the state of the record, we are unable to undertake a full de novo review as required by T.C.A. § 40- 35-401(d). Thus, the defendant’s cl aim relating to the rejec tion of full probation would avai l him nothing in a rev iew on the merits.

In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

Joseph M. Tipton, Judge

CONCUR:

Joe G. Riley, Judge

Curwood Witt, Judge