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

Briefs J une 3, 2003

STATE OF TENN ESSEE v. SHATHA LITIS SER JONES

Appeal from the Circuit Court for Madison County No. 02-428 Roy B. Morgan, Jr., Judge

No. W2002-02697-CCA-R3-CD - Filed July 14, 2003

The de fe nd an t, Sh at ha Lit is se r J on es , p le d g ui lt y i n the Madi son County Circuit Court to theft of propert y valued mo

re than f ive hundr ed dollar s but less than one thousanddo ll ar s, a C la ss E fel on y. The length and manner of servi ce of he r sentence were to be determined by the trial court, which sentenced the defendant as a R a nge I, standa rd offender to two years in the Department of Correction. The defendant appeals, claiming that her sentence is excessive and that she should have received probation or

anoth er sentence involving no confinement. We affir m the trial court’s judgment of conviction.

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 cou rt, in which D AVID G. H AYES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Michael D. Rasnak

e, Jackson , Tennes see, for the appe llant, Sha tha L itisser Jone s.

Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; James G. Woodall, D istric t Attorney Gene ral; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

This case re

lates to the defend ant’s theft of clothes from a department store on Marc h 8, 2002. At the sentencing hearing, the defendant testified that she and her husband w ent to Sea

rs in order to buy him a suit. She said that he had gotten out of prison recently and that he needed

the suit for church. She said that while they wer e in the store, her husband took a shopping bag and asked her to help him put clothes in the bag . She said t hat she to ld him, “Well I don ’t feel g ood about this” butthat she held the ba

g for him while he p

ut clothe s in it. She said that she told him, “Well you’re

on your own from h

ere” a nd that she

walked a way from him. Sh

e said that her husband was stopped

as he triedto leave the store and that she told him, “You’re caught. Go back in.”She said that Sears recovered the clothes and that the clothes we re not damaged.-2-

The defendant testified that at the time of the sentencing he aring, her husband was in jail and she had six children who were fourteen, thirteen, eleven, te n, nine, and six years old. She said that

no one helped her take care of he r children and that she would lose them if the trial court sent her
to jail. She said that she had a prior conviction for possession of cocaine and that she had served an eight-y ear probationary se

ntence for t

hat cri me. She said that she had been working at Poly One Rubber Compoundin g for th

ree we eks and th at she pla nned to get an a ssociate

degre e in computer operations from

Tennessee Technical Center. On cross-examination, the defendant a cknowledged that a videota pe showe d her hold

ing the b ag ope

n for her husband w

hile he put “stacks” of

clothes in it. She also acknowledged having other convictions and committing those crimes while she was on probation for her possession of cocaine conviction.

Pastor Jay Denar Williams testified that the defenda nt had been a member

of his church for four tofive yea

rs and that she had tried to change her life. He said that

the defendant did not have anyone to help he

r take c are of h

er child ren and t hat he would helpher if the trial court sentenced her to probation or community cor rections.

Kensha Henderson testified that the defendant was her friend and a me mber of her

church. She said that although the defendant had committed crimes, the def endant was a good person and had done volunteer

work for a support group f or pregnant tee

nager s. She said that the defendant’s husband, not the defendant, intended to steal the clothes from Sears. She said that the trial court should hav e mercy

on the def

endant because th

e defendant had s ix children to support

. According to the p resentenc e report, the then twenty -nine-ye ar-old defendant dropped out of high school in

the tenth grade but obtained her GED. I n the report, the defendant stated that she suffers from asthma and takes several medications. She also stated that she did not abuse drugs or alcohol and that she had never received a ny p syc

hiatric t reatmen t. In a ddition to w orking a

t Poly One, the report shows that the defendant worked at Ty son Foods for thre e months, t he Huddle

House Restaurant

for two months, and Airtrans for six months. The report reveals that the defendant has a 1992 felony c onviction for possessing more than one-half gr am of cocaine and that she receive d

an eight- ye ar sente

nce with sixty day s to be served in jail and the remainder on probation. The re port also reveal s that the d

efenda nt has pri o r misdeme anor convictions for three counts of theft of propert y valued le ss than five hundred dollars, two counts of driving with a suspended license , and

one count of violating the bad check law. The report shows that all but one of those crimes were committed while the defendant was on probation for the 1992 felony conviction. According to the report, a probation revocation hearing was he ld in 1994, the defendant was found to have violated the terms of her 1992 probation behavior contract, and she was or de re d t o s er ve an ad di ti on al fo rt yfive days in jail.

In sentencing the defendant, the trial cour t stated that the presumptive sente nce for a Range I offende r convic ted of a Cl ass E

felony is one y

ear. See Tenn. Code Ann. § 40-35-2 10(c); see also Tenn. Code Ann. § 40-35-112(a)(5) (providing that the range of punishment for a Range I offender convictedof a

Cl ass E fe lo ny is one to two years ). It applied two enhancement factors: (1), that the defendant has a pre vious histo

ry of crimin al convictions in addition to

those required to establish the1 The legislature ’s 2002 amendmen t t o Tenn. Code Ann. § 40-35- 114 added as the new en hance ment fact or (1)

that the “offense was an ac t of terrorism” but cha nged the ex isting enhanceme nt factors only in increasi ng thei r designat ing number

by one.

-3- appropr iaterange , and (8) , that the de fendant “has a pr evious his tory

of unwilli ngness to comply withthe condition s of a sen tence in volving r elease in the community.” See Tenn. Code Ann. § 40- 35-114 (1), (8) (Supp. 2001) (amended 2002). 1 In mit igation , the tria

l court c onsidere d th at th e defendant’s “criminal conduct neither caused nor threa tened serious bodily injury ,” that the defendant had successfully

completed probation in the pa s t, and that Sears recovered the stolen propert y undamaged. See Tenn. Code Ann. § 40-35-113(1), (13). The trial court stated tha t the enhancement

factor s out weighe d the m itiga ting fa ctors and no ted th at alt hough the defendant had been sentenc ed to “sho ck incar ceratio n” befor

e, it had f ailed to st op her fr om comm

itting cr ime s. The trial court sentenced the defendant to two y ears and ordered that she serve he r entire sentence in confinement.

The defendant claims that her two-y ear sentence is excessive. Specifically , she argues that the mitigating factors outweighed the e nhancement

factors and that the trial court improperly applied enhancem ent factor ( 8) regarding her unwillingness to comply with the conditions of a sente nce involving releas e into the community

because t he state failed to prove that her 1992 probationary sentence had been revoked. In addit ion, she argu es tha t the t rial c ourt f ailed to mak e any findi ngs regarding her request fo r a sentence without confinement. The state claims that the trial cour t properly sente

nced the defendant. We agre e with the state.

When a defendant appeals the length a nd manner of service of a sentence imposed by the

trial court, this court conducts a de novo review o f the re cord with a presum ption that t

he tria l cour t’s determinations are correct. Tenn. Code Ann. § 40-35-401( d). However, the presum ption of

correctness is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d), Sentencing Commission Comments. This means that if the trial court followed the statutory sentencing procedure, made findings of fact tha t are ad equatel y su pported i n the record, and

gave due consideration and proper weight to the fa ctors and principles that are relevant to sentencing under the 1989 S entencing Act, we may not disturb the sentence even if a different result were prefe rred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

When determining if inca rce ration is appropriate, a trial court should consider that (1) confinement

is neede d to prote ct socie ty b y r est rai ning a defendant who has a long history of criminal conduct, (2) conf inement isneeded to avoid depreciating the seriousness of the offense or confinement

is particularl y su ited to pro vide an e ffectiv e deter

rence t o people l

ikely to commit similaroffenses, or (3) less restrictive measures than confinement have f requently or

recently been applied unsucce ssfully

to the defendant. Ashby , 823 S.W.2d at 169 (citing Tenn. Code Ann. § 40-35-103(1)(A)-(C)). Additionally, a trial court should consider a defendant’s potential or lack of potential for rehabilitation. Tenn. Code Ann. § 40-35-103(5).-4-

Ini ti al ly, we note that any

evidence presented

at the guilty plea

hearing should be considered in determining the appropriate sentence

. See Tenn. Code Ann. § 40-35-210(b)(1). However, the defendant has failed to include in the record on appeal a transcr ipt of the guilty plea he aring relating
to her conviction. It is the duty of the defendant to prepare a fa ir, accurate, and complete rec ord on appeal to enable meaningful appellate revie w. T.R.A.P. 24. This court notes that failure to include the trans cript of the guilt y plea hear ing in the rec ord pr ohib its t he cou rt’s c onduc ting a full de novo review o f the sen

tence under Ten

n. Code An

n. § 40-35 -210(b) . In a

ny e vent, the record

before us supports the trial court’s determination relative to the def

endant’ s crimina

l history and inabi lity

to comply with the requirements of a former probation. There fore, we conclude that the defenda nt has failedto show that the length of her sentence is excessive or that the trial court erre d by ordering her to serve her sent ence in c onfineme

nt.

Based upon the foregoing and the recordas a whole, we affi rm the judg

ment of the

trial cou rt.

______________

______________________ _ JOSEPH M. TIPTON, JUDGE