# FILED March 19, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBE R SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00272 ) Appellee, ) ) HENDERSON COU NTY V. ) ) ) HON . FRA NKL IN MU RCH ISON , ANT HON Y HO LT, ) JUDGE ) Appe llant. ) (VOLU NTAR Y MA NSLA UGH TER)

FOR THE APPELL

ANT : FOR THE APPELLEE : CARTHEL L. SMITH, JR. JOHN KNOX WALKUP 85 East Church Street Attorney General& Reporter Lexington, TN 38351 DOUGLAS D. HIMES Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashville, TN 37243 JAMES G. WOODALL District Attorn ey Ge neral BILL R . MAR TIN Assistant Distri ct Attorney General Village Squar

e, Suite M 777 West Church Street Lexington, TN 38351

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE-2- 

# OPINION

The D efend ant, An thony Holt, ap peals as of rig ht follow ing his sente ncin g hea ring in the C ircuit C ourt of H ende rson C ounty . Defe ndan t was in dic ted on a charge of committi ng second degree murder on July 10, 1996, but he eventuall y pled guilty to a reduced char ge of voluntary mans laught er. Pursuant to the pl ea agreem ent, the trial court was to determine bot h the lengt h and manner of service of the sentence at the sen tencing h earing. T he trial cou rt ordered Defen dant to
serve a sentence of 4.5 years in the TennesseeDepartment of Corr ection, denying any form ofalternat ive sentence. The Defendant’s s ole issue on appea l is t he denial of alternativ e sente ncing. W e affirm the judgm ent of the tria l court.

When an accused chall enges the lengt h, range or the mannerof service of a sentence, this cour

t has a duty to conduct a de novo review of the sentence with a presumption that the determinati ons made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumpti on is “condi tioned upon t he affirmative showing in the record t hat the tri al court consi dered the sente ncing pri nciples and al l relevan t facts and circum stances.” State v. Ashby , 823 S.W .2d 166 , 169 (Te nn. 199 1).

In conducting a de novo review of a sentence, thi s court must consi der: (a) the evidence, if any, received at the trial and t he sentencing hearing; (b) the presentence report; (c) theprinciples of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteri stics of the criminal condu ct involved; (e) any s tatutory mitigati ng or enhancement factors; (f) any st atement that t he defen dant m ade o n his-3-

own behalf; a nd (g) the potential o r lack of potentialfor rehabi litat ion ortreatme nt. Tenn. Code Ann. § 4 0-35-10 2, -103 a nd -210 ; see State v. S mith , 735 S.W.2d 859, 863 (Tenn . Crim. App. 19 87).

If our rev iew re flects th at the tria l c our t foll owed the statutory sentenci ng procedure, imposed a lawfulsentence after having gi ven due considerat ion and the properweight to the factors and prin ciples se t out unde r the sen tencing la w, a n d made finding s of fact adeq uately su pported by the rec ord, then we m ay not m odify the sentence even if

we would have prefer red a differentresult. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).

A defen dant w ho “is a n esp ecially mitigate d or standard of fenderconvicted of
a Class C, D or E fel ony is presumed to b e a favor able candidate for alternative sentencing option s in th e absence of evidenceto the contrar y.” Te nn. CodeAn n. § 40-35-102 (6). Our sentencinglaw also provi des that “convicted felons committi ng the most se vere offenses , possessing criminal histories evinc ing a clear disrega rd forthe laws an d morals o f societ y, and evinci ng failu re of past ef forts at rehabilitation, shall be given first priori ty regardi ng sentences involving incarcer ation.” Tenn. C ode An n. § 40-3 5-102(5 ). Thus, a d efenda nt senten ced to eight(8) years or

less who is not

an offender f

or whom incarcera tion is a priority is presumed eligible for altern ative s enten cing u nless sufficie nt evid enc e rebuts the presumption. Howe ver, the ac t does no t provide th at all off enders who meet the criteria a re ent itled t o such reli ef; rat her, it requires t hat sentenci ng issues be-4-

determine d by the fac ts and circ umsta nces p resente d in each case. See State v . Taylor , 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).

Additional ly, the principl es of sentenci ng reflect that the s entence should be
no greater than tha t deserved for the offense committed and should be the least
severe meas ure nec essary to achiev e the pu rposes for which th e sente nce is imposed. Tenn. Code Ann. § 40-3 5-103(3) an d (4). The cou rt also should consider the potentialfor reh abilit ation or t reatment of t he defendant i n determining the senten ce alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).

Defendant does not contest the length of

the sentence, on ly that the trial court denied alternative s entencing. The trialcourt heldthat alternative s entencing was inappropriate in t his case, reasoning as foll ows: This man [victi m], as I sai d to repeat, was very brutal ly kil led, and the Defen dants escaped a charge of second deg ree murder. When I say escaped, I say they ar e not guil ty. They are not going to trialon second degree murde r. It ’s unfortunate that [t he victi m] behaved the way he did, and it’ s equally unf ortunate and sad that the Defendants responded the way they did, with extr eme violence. As I s aid, alternat ive sentencing is not appr opriate, and I rely

upon and foll ow Section 40-35- 103. Confinementis necessary t o avoid depreci ating the seriousness of the offense, for confi nement is part icularly suited to prov ide an effective deterrence to o thers likel y to commit a si milar offense. Here we have a man again who was kill ed, who is dead, who was a pathetic man, b ut he was a child of

God as we all are and he was k illed, and this ha s caused much grief to his famil y. And we have heard fr om the Defendants, or the Defendants’ famil y, we have not heard from the Defen dants themselves, t hat they are rem orseful ab out this thing . It is a sad thing, a tragic thing, f or [the vi ctim], hi s family and now t he Defen dants’ fam ily.-5- At the sente ncing hearin g, the tria l court a ppare ntly relied upo n the nature of the circumstances of

the offens e to just ify the denial of alternat ive sentenci ng and to impose a sentence of total i ncarcerati on. For such a deni al to occur , though, t he circu mst ances of the off ense must be “especi ally vi olent, horrifyi ng, shocking, reprehensibl e, offensi ve, or other wise of an excessive or exaggerate d degree, and the nature of

the offens e must outweigh al l factor s favorin g a sentence other than confi nem ent.” State v. Bi ngham , 910 S.W .2d 448, 455 (Tenn. Crim . App. 1995 ). This standard was essent ially codifi ed by sect ion 40-35-103( 1)(B) which pr ovides for confineme nt if “necessary to a void deprec iating the seriousn ess of the offens e.”

When impos ing a sen tence o f total confi nement , our Crimi nal Sentencin g Reform Act mandates the t rial cour t to base i ts dec ision on th e considerat ions set forth in Tennessee Code Annotated section 40-35-103. These considerations which militate against al ternati ve sentencing i nclude: t he need to prote ct societ y by restrai ning a defendant wit h a long history of crimi nal conduct; whether confi nement is particularly approp riate to effectively deter other s likel y to commit a si milar offense; the ne ed to a void depreciating the seri ousness of the off ense, and the need to order c onfine men t in cases in which l ess restri ctive measures have often or recently been unsuc cessfully a pplied to th e defen dant. Tenn. Code Ann. § 40-35- 103(1).

In determining whether to grant probation, the judge mu st consider the n ature and circumstancesof the offense, the defendant’ s criminalrecord, hi s background and social hi story, hi s presentconditi on, incl uding his physi cal and mental cond ition,-6-

the deterrent

effect on other cri minal activity, a nd the likelihoo d that p robatio n is in the best intere sts of both the pub lic and the defend ant. Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). T he burd en is on th e Defe ndant to show that the sentence he received i s improper and t hat he is ent itled t o prob ation. State v. Ashby , 823 S.W.2 d 166, 1 69 (Ten n. 1991 ).

We note that t he transcri pt from the gui lty pl ea hearing was not i ncluded in t he record on appeal. Fro m our review of t he sentencing hearing tr an script, the tri al court apparent ly reli ed upon p roof it had h eard du ring the gu ilty plea hea ring. It is the duty of t he party seeki ng appellate review to prepare a rec ord which conveys a fair, accurate and complete account of what transpir ed with respect

to the i ssues forming the basis of

the app eal. State v. Ballard , 855 S.W.2d 557,560 (Tenn. 1993) ( citing State v. Bunch , 646 S.W.2d 158, 160(Tenn. 1983)) . When there is less than
an adequate record on ap peal, th is cour t mus t presu me th at the tria l court’s rulings
were suppo rted by su fficient evide nce. State v. Oody , 823 S.W.2d 554, 559 ( Tenn. Crim. A pp. 199 1) (citations omitted)
.
Based upon this pres umption, this cour t concludes t hat the ext remely viol ent nature of the beati ng of the vi ctim as noted by the trialcourt is a suffi cient basi s upon which to de ny alternat ive sentenci ng. The State met its burden i n proving t he “espe cially violent , horri fying, s hocking, reprehensibl e and offensi ve” circumstances surrounding the vict im’s death and t he nature of Defendant’s offense outw eighs all factors favoring a sentence other tha n confine ment. Bingham , 910 S.W.2d at 455. Wh ile t he existence of a death by itself cannot justi fy a sentence of total-7-

confinem ent, the circ umstances surroundi ng Defendant’s ac tions were such that justify his sente nce. Similar to a previous deci sion by a panel of this court regar ding the trialcourt’s denial of a completely s uspended sentence, t he Def endant in the
case sub judice violent ly beat a total str anger who was apparentl y intoxi cated, striki ng and kicking him repeate dly. See State v. Br andon Harrison , 02C01-9206- CR-00138, Shelby Coun ty (Tenn . Crim. A pp., at Ja ckson , Augu st 4, 1993) (No Rule 11 applicat ion fil ed)
. Particular ly in light of the fa ct that we do not ha ve the gu ilty plea transcri pt bywhich to review the ci rcumstances of t he offense, we presume that the trial cou rt aptly described t he extremely vi olent and horrifyingcircumstances of the bea ting whic h resulted in the victim ’s death.

Moreov er, from a review of the Defendant’s pr

esentence report , it i s clear that he has a histor

y of misdemeanor offenses, incl uding theft , bad check vi olations and
numerous traffic offenses. Despite past leniency andopportunit ies for r ehabili tation, the Defendant “has shown nei therrespect fo r the pri or repri eves from incar ceration,
nor efforts toward conforming his condu ct to the dictates of the l aw. Having no regard for measures l ess restri ctive t han confinement, the Defend ant has through his own a ctions rebutte d the p resum ption o f his favorable candidacy for alternative senten cing.” State v. RandalThies , No. 02C01-9708-CC-00299, slip op. at 9, Tipt on Coun ty (Tenn . Cri m. App. , at Jacks on, Ap ril24, 1 998) (No Rule 11 ap plication filed).

In additio n to the ci rcumstances of t he offense j ustify ing the deni al of an alternativesentence due to t he seriousnes s of the Defendant’ s offense, the tri al court noted a lack o f remorse by the Defend ant. Lack of re morse is sufficien t-8-

evidence by whic h a trial cou rt may d eny an alternati ve senten ce. Smith , 735 S.W.2d at 864. The presentence report does not include any statementon be half of the Defendant. Ther e is no just ificat ion provi ded by the Defendant to explai n the degree of force us ed.-9- There is not suf

ficien t evidence wher eby the sentence of total confinement
was not justified. A fter a thoro ugh rev iew, we affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. WO ODALL, Judge

CONCUR:

___________________________________ GARY R. WADE , Presidi ng Judge

___________________________________ JOHN EVERET T WILLIAMS, Judge