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

Briefs O ctober 2, 2001
STATE OF TENNESSEE v. CHAUNCEY E. GRAY
Appeal from the Circuit Court for Chester County No. 00-046 Roy B. Morgan, Jr., Judge

No. W2001-00285-CCA-R3-CD - Filed December 7, 2001

The defendant, Chauncey E. Gray, a

ppeals as of right from his convictions by a jury in the Chester County Circuit Cou

rt of for gery , a Class E felony , and th eft of property valued at $500 or less, a Class A misdemeanor. The tria l court se ntenced him as a Ra

nge I I, mul tipleoffender to a four-y

ear sentenc e for the

forge ry to be served in the Department of Correction, imposed a $1,500 fine, and ordered $400 in restitution. It imposed a sentence of eleve n mo nths, twenty-nine day s at seventy-f ive percent for the theft to be served concurrently anda $1,250 fine. The

defenda nt conten ds that his effective four-y

ear sentence is excessive and that he should have received a sentencing a

lternative to confin ement. We

affirm t he sente nces impo sed by

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined.

An ge la R. Sc ot t, He nd er so n, Te nn es se e, fo r t he ap pe ll an t, Ch au nc ey E . G ra y.
Paul G. Summers, Attorney Gener al & Repo rter; L aura Mc Mullen Fo

rd, Assist ant Attor ney Genera l; James G. Woodall, District Attor ney Genera l; and Jody

Pickens, A ssistant D istrict At torney Genera l, for the appellee, State of Tennessee.
OPINION

The defendant’s convictions arose from his cashing a check for $400 on the account of Frank and Diann Clayton. The pre sentence report reflects that a ba nk teller identifiedthe defendant from a photograph array

as being the person who cashed the c heck.

The presentence report revea ls that the then thirty-four-y ear-old defendant

graduated from high school with a special education diploma. He also attained training as a plumber’s helper and in painting and decorating. He r eportedreceiving additional training in automobile diesel mechanics and automobile

body work. He

was self -emp lo ye d as a mechanic, working with severa l trucking-2-

companies and ear

ning $20 0 to $250 pe

r week. He also

did s ome car detai ling. He worked for a car dealer ship as a mechanic for six and one-half months in 1998 but lost the job when he was arrested. At the time of the presentence report, the defendant, who has four chi ldren, w as separ ated fr om his second wife and lived with his fiancée.

At the sente ncing hearing , the state

introduc ed cert

ified judg ments for a 1999 conviction for driving on a revo ked license, a Class B misdemeanor; a 1996 conviction for a f ederal offense of aiding and abetting mail fraud; 1993 convictions for nine counts of forge ry , Class E fe

lonies; a 1990 conviction for possession of a televis ion without

a serial number, a Class A misdemeanor; a 1990 conviction for possession of drug pa rapher nalia, a Class A misdemeanor; and 1990 convictions for three counts of

automobile

burgla ry , Class E fe

lonies. Al so, the sta

te prese nted cer tified jud gments f romthe general sessions court for convictions of domestic violenc e, carry ing a weapon with the intentto go armed, interfering with an officer, resisting arrest, public intoxication, simple possession of marijuana, a violation of the registration law, and f ive c onvictions for driving on a revoked or suspended license. The state relied upon one of his automobile burglary convictions and one of his forgery convicti ons to establish that he was a Range I

I, multiple offender. See

Tenn. Code Ann. § 40-35-106. The presentence report reflects that the defendant’s probation for automobile burglar y was revoked on November 22, 1991, and that he was se nt to the Department of Correction.

The trial court applied two enhancement factors: (1) tha t the defendant had a history of prior criminal convicti ons or beh avior ab ove those needed to establi sh his range and

(8) that the defendant had “a previ ous history of unwillingness to comply with the conditions of a sentence involving releas e in the community.” See Tenn. Code Ann. § 40-35-114(1), (8). Noting that he pre s entl y stood co n victed of property crimes, it applied mitigating factor (1), that the “ defendant’s criminal conduct neither caused nor threatened serious bodily injury.” Tenn. Code Ann. § 40-35-113(1). The court gave g reat we ight tothe defendant’s prior criminal record and sentenced him to four y ears, the maximum in the range, for his fo rgery convicti on. I

t sentenc ed him to eleven months, twenty-nine da ys for the theft conviction and ordere d the sent

ences to run concurrently . In light of the enhanc ing and mitigating factors considered, the court ordered the defendant to serve his sentenc e in the Department of Correction.

When a defendant

appeals the length, range , or manner of service of a sentenc e imposed by the trial cou

rt, this court conducts a de novo review of the record with a presumption that the trial court 's determin ations ar e correct. Tenn . Code Ann . § 40-35- 401(d). T he presu mptio n o f
correctness is “conditioned upon the affirmative showing in the record tha tthe trial court considered the sentenc ing principles a nd all relevant f

acts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sente nce is improper is upon the ap pe al in g p ar ty. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record sh ows that the tr

ial cour t failed t o conside r the sen tencing principle s and all r

elevant facts an d ci rc um st an ce s, th en re vi ew of th e s en te nc e i s p ur el y de novo
. Ashby , 823 S.W.2d at 169.

The defendant was sentenced as a Rang e II , multiple offender, for which the ap plica ble ran ge for a Class E felony is two to four y ears. Te nn. Code Ann.§ 40-35-112(b)(5). The presumptive-3-

sentence for a Cla ss E fe lony is the minimum in the range whe n no enhancement or mitigating factors are present . Tenn. Co de Ann. § 4 0-35-210 (c). Pro cedura lly, the trial

court is to

increase the sentence within the range based upon the e xistenc e of enhancement factors and then r educe the sentence as appr op riate for any mitigating factors. Tenn. Code Ann. § 40-35-210(e ). The weight to be affo rded an e xisting fa ctor is left to the trial

court' s discre

tion so long

as it compl

ies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Commen ts; Ash by , 823 S.W.2d at 169.

The defendant contends that the trial court erred in its application of enhancement fa ctor (8) and that it failed to consider the applicable sentencing principles in its imposition of a sentence of incarceration. However, the defendant has failed to include the trial transcript as a part of the record
on appeal. Pursuant to Rule 24(a), T.R.A.P., the defendant filed with the clerk of th e trial c ourt a designation of the record on appeal to include “the tra nscript of the pr oceedi ngs filed in this matter.” D es pite this designation, the defen dant fai led to ens ure that the rec ord conta

ined the c omplete trans cript . The t rial c ourt i s requ ired t o cons ider f or sen tenci ng purp oses t he fol lowi ng:

(1) The ev idence, if any , received at the trial and the sentencing hearin g; (2) The p resente nce rep ort; (3) The princ iples of se

ntencing and arg uments as to sentencing alterna tives; (4) The nature and characteristics of the criminal conduct involved; (5) Evidence and information offered by the parties on the enhancement

and mitigating factors in §§ 40-35-113 and 40-35-114; and
(6) Any stat

em ent th e defen dant w ishes to mak e in th e defen dant's own be half ab out s enten cing.

Tenn. Code Ann. § 40-35-2 10(b). Co nsidera tion of the se fact

ors is mandatory. I

n similar fashion, the fac t that our s tandard

of revie w is de novo on the record requires us, as well, to c onsider t hese factor s. The “fa

ilure to include a t

ransc ript of the trial makes it impossible for us to conduct an appropriate de novo consideration of the case or to determine whether the trial cour t erred relative to its determinations which were based in any part on that evidence.” State v. Hayes , 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994). Thus, even if the limited record before us indicates trial court
error that might ordinarily ove

rcome the statutory pr

esumption of

correctness that applies to the trial court 's determin ations, we will still be unable

to conduct a proper de novo review o f the stat utorily relevant factors in the absence of the trial transcript.-4-

Neverth eless, most of the trial court’s reasoning with respect to th e application of the enhancement

and mitigating factors was based up on the c ertified judgments introduced at the sentencing hearing and the pr esentence repo

rt. We are

able todetermine from the record before us that the trial court correctly ap plied enhanc ement factor (8), involving “a previous history of unwillingness to co mply

with the c onditions o f a sente nce involving re

lease in to the community.” Tenn. Code Ann. § 40-35- 114(8). The defendant argues that a lthough his probation was revoked in 1991, he successfully

completed a three-y

ear probationary

period for a federal offense a s well as several probationary pe

riods for misdemeanors after 1991. For this reason, he conc ludes that the state has failed to prove by a preponderance of the evidenc e that he was un

willing t o comply with the conditions of a sentenceinvolving release. The state arg ues that factor

(8) applies because the defendant’s probation for

three 1991 convictions of automobile burglary

was revoked on November 22, 1991. We agree that this revocation indicates a pre vious history of unwillingness to comply even if the defendant also complied with the conditions of past pr obationa ry periods. In a

ny e vent, altho ugh the trial court applied factor (8), it placed g reat emphasis on the defenda nt’s extens ive criminal history. We believe the de fendant’s numerous convictions, including eight forg ery convictions, fully justify

the trial court’s imposition of the maximum sentence. Regardi ng manner of

service of the sentences, the defe ndant contends that the trial court failed to consider the factors in Tenn. Code Ann. § 40-35-103 and to place its reasons for deny ing
a sentencing alternative on the recor d. The st ate summa

rily argue s that the t

rial cou rt prope rly concluded

that incarceration

wa s ap pro pri ate in th is cas e. W e be gin by no ti ng t hat as a Ran ge II,
mu ltiple offender, the defendant is not among those pr esumed to be a favorable candidate f or alternative sentencing. See Tenn. C od e Ann. § 40-35-102(6). “Sentences involving conf inement should be b ased on th

e followi ng cons ideratio ns:” (A) Confi nemen t is n ecessa ry to prot ect so ciety by rest raini ng a defenda nt who has a long h

istory of crimin al conduct; (B) Confineme

nt is nece ssary

to avoid de

precia ting the seriousness of the offense

or confi neme nt i s particularly suited to provide a n effective deterrence

to others likely to commit similar offenses; or
(C) Mea sures less restrictive than confinement have frequently or recent ly b een app lied unsuc cessful ly to the defe ndant.

Tenn. Code Ann. § 40-35-103(1). The defendant does not explain why these considera tions do not apply to him. Fur

thermore , we are

not in a pos ition to eva luate sub se c tion (B), relating to the seri ousness of the of

fense, b ecause

the defe ndant hasfailed to

provide u s with the t

rial tra nscript. For this r eason, w e will pre sume the tr ial cour t’s sente nce of incarce

ration is c orrect

.-5-

Based upon the foregoing and the record as a whole, we affirm the sentences imposed

by the trial court.



### _________________ _____________ JOSEPH M. TIPTON, JUDGE