### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
STATE OF TENNESSEE v. ANT HONY DESHAUN ALLEN
Direct Appeal from the Circuit Court for Tipton County No. 4964, Joseph H. Walker, III, Trial Judge

No. W1999-01381-CCA-R3-CD - Decided May 2, 2000

The appellant appea

ls the sentencing decision of the Tipton County Circuit Court following his jury conviction for aggravated robbery. At the sent encing heari ng, the trial court applied the following enhancement

factors: (1) pri

or criminal histor

y; (10) his r

isk to human life; and (13) of fenses commi tted w hile o n paro le; no appli cable miti gatin g facto rs wer e foun d. In this direct appeal, the appellant argues misappli

cation of enhanc

ement factors (1 ) and (13) upon g rounds that his

previous felony conviction which f

ormed the basis

for these enhancer

s was “overturne

d” on appeal. Add iti ona lly, he argues that application of factor (10) violates sentencing principles. F indin g the appellant’s allegations unsupported by the record, we affirm the judgment and sentence imposed by the trial court. Tenn.R.App.P. 3(b) A

ppeal as of Right; Judg

ment of the Circ

uit Court affirme

d.

H AYES , J. delivered the opinion of the court, in which W ELLES and G LENN , J.J., joined. Franklin Deslauriers, Covington, Tennessee, attorney for appellant, Anthony Deshaun Allen.

Paul G. Summers, Attorney General and Reporter, Michael Moore, So licitor General

, Tara B. Hinkle, Assistant Attorney Gene ral, E lizabeth Rice, District Attorney General, for the appellee, State of Tennessee.
OPINION On September 9, 19

97, the appellant,

Anthony Deshaun Allen, a.k.a. “Dee Dee,” was found guil ty, by a Tipton County jury of the offense of aggravated robbery , a c lass B f

elony and was sentenced to ten years in the Department of Correction. No di rectappeal of his conviction or sentencewas taken. On July 29, 1998, the appellant filed a petition for post-conviction relief alleging that appointed counsel was ineffective. During the pendency of the post-conviction proceeding, it was discovered by the State that the appellant was never inform ed of his right to a direct appeal of his conviction or sentence. Following a hearing, the post-conviction court granted the appellant a delayed appeal, finding no voluntary waiver of the appellant’s right to direct appeal as required by Tenn. R. Crim. P. 37.1 A panel of this cour t, inrevi ewi ng th e app ell ant ’s 1 994 con vic tio n fo r agg rava ted rob bery, held The conviction of Anth ony Alle n is vacated and his case is remanded to the trial court for a hearing to determine

whether the iden

tification of Alle

n by Chris Dav

is should be suppress

ed as the appella

nt requested bef

ore trial. If the trial court finds that the identification by Mr. Davis should be suppressed,the court shall order a new trial for Mr. Allen on this charge. However, if the trial court finds that the


### -2- In this appeal as of right, theappellant contends that the trial court’s imposition of a ten year sentencewas excessive based uponthe court’s misapplication of three enhancement factors. After review, we aff

irm. Background Init ial ly, we are compelled to note that any meaningful review of this appeal is frustrated by the lack of a complete record. First, there are no transcripts of relevant hearings condu

cted in this
case including the sentencing hearing from which the appella

nt appeals. The on

ly reference to any factual backgro und in this case is found in the affidavit of complaint, which is contained in the technical record: On or about November 6, 1996, two (2) male blacks entered KSK Beau ty Su ppl y . . . Covington . . . . Approximately $501.00 in bills was taken at gunpoint from the cash register and the store owner’s purse. Subjects left the area on foot running and two (2) fitting description given by the victim were seen running into apartment L-89 Broadmeadow’s . . . . The clothing worn by subje

ct(s) w ere recovered in the apartment along with the mon

ey and the g

un. Anthony D

eshaun Allen is bein g char ged w ith Aggr avat ed R obb ery.
In imposing sentencein the present case, the trial court found that “the [appellant has a prior history of criminal convictions or criminal behavior in addition to those necessar

y to establish the appropriate

range, this off

ense was committe

d while on probation or parole, and [the appellant] had
no hesitation about committing an offense in which t he risk to h uman life was high.” State v. Anthony D. Allen , Appellate Recor d, v.1, p.37. The c

ourt found no appli

cable mitigating factors. The court then sentenced the appellant to ten years confineme nt in the Department of Correction.

Analysis In contesting the le

ngth of th

e se ntence imposed by the trial court, the appellant argues misapplication of enhancement factors (1), prior criminal history; (10), high risk to human life; and (13), offense committed while on parole. At the sentencing hearing held on October 8, 1997, the Staterelied upon enhancement fact ors (1) and (13), which arose from the appellant’s 1994 conviction for aggr avat ed ro bbe ry, from which a direct appeal had been taken. On August 19, 1997, the Court of Criminal Appeals filedit s opinion regarding the appellant’s challenge to the 1994 aggra vatedrobbery c

onviction, vacati

ng the convictio

n and remanding

to the trial court for additiona l proceedings. 1 Acco rdi ngly, the appellant argues that, as his conviction was “overturne

d” on appeal,identification should not be suppressed, the court shall makespecific fi ndings of fact

and conclusions of law, and reinstate the judgment of conviction of Mr. Allen.

State v. Allen , 976 S.W.2d 661, 670 (Tenn. Crim. App. 1997).

2 The technical reco

rd reflects, by

the appellant’s f

iling of a m otion in limine, that the trial court was made aware of this court’s August 19 , 1997, o pinion vacating the appellant’s 1994 convicti on for a ggravated robbery prior to his September 9, 1997, trial in the instant ca se. Add iti ona lly, the record

indicates that the trial court prohibited the State’s introduction of the 1994 conviction for purposes of im peachment, but did

, however , apply the 1994 conviction for enhancement purposes at sentencing. 

### -3- any use of the prior conviction to enhance his sentence in the present case is necessarily error. 2 M oreover, he contends that th e trial court impr

operly app

lied factor (10) , that th e offense wa s committed when there was a high risk to human life. I n this regard, th

e appellant arg

ues that this factor is an element of the underlying crime of aggravated robbery . From these issues, the court is confronted

with two ques tions which are relevant to the determination of this appeal: (1) whether the proof developed at the sentencing hearing supports the appellant’s allegations regarding factor (10); and (2) the Fay

ette County Ci

rcuit C ourt’s disposition of this court’s directive upon remand in the 1994 aggravated robbery convic tion. As to the later, we are without knowledg

e as towhether the 1994 conviction was reinstated, remanded for a new trial, or indeed, if any action has been taken at the trial level. The r ecord is voi d as to tran scripts or proof of the se pertinen t proceedin g. Review, by this court

, of the length, r

ange, or manne

r of service of a

sentence is de novo with
a presumption that the determination made by the trial court

is correct. Tenn. Code Ann. § 40-35- 401(d) (1997). The appellant bears the burden of

showing the impropriety of the sentence imposed. Sentencing Commission Comments, Te nn. Code Ann. § 40-35-401(d). If the appel late record is inadequate, the reviewing c ourt must presume that the trial judge ruled correctly. See State v. Ivy , 868 S.W.2d 724 , 728 (Tenn. Crim. App. 1993). The obligation of preparing a complete and adequate record for

the issues presented on appeal rests upon the appealing party. See Tenn. R. App. P. 24(b). The failure to so prepare an adequate record re sul ts in a waiver of such issues and a presumption that the ruling of the trial court was correct. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). For the reasons herein, the judgment of the trial court is affirmed.