FILED

March 19, 1999

Cecil Crowson, Jr.

Appe llate Court C lerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9809-CC-00272

)

Appellee, )

) HENDERSON COUNTY

V. ) 

)

) HON. FRANKLIN MURCHISON, 

ANTHONY HOLT, ) JUDGE

)

Appellant. ) (VOLUNTARY MANSLAUGHTER) 

FOR THE APPELLANT: 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, Cordell Hull Building

425 Fifth Avenue North

Nashville, TN 37243

JAMES G. WOODALL 

District Attorney General 

BILL R. MARTIN

Assistant District Attorney General

Village Square, Suite M

777 West Church Street

Lexington, TN 38351

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Anthony Holt, appeals as of right following his sentencing

hearing in the Circuit Court of Henderson County. Defendant was indicted on a

charge of committing second degree murder on July 10, 1996, but he eventually pled

guilty to a reduced charge of voluntary manslaughter. Pursuant to the plea

agreem ent, the trial court was to determine both the length and manner of service

of the sentence at the sentencing hearing. The trial court ordered Defendant to

serve a sentence of 4.5 years in the Tennessee Department of Correction, denying

any form of alternative sentence. The Defendant’s sole issue on appeal is the denial

of alternative sentencing. We affirm the judgment of the trial court.

When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defendant made on his
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own behalf; and (g) the potential or lack of potential for rehabilitation or treatment.

Tenn. Code Ann. § 40-35-102, -103 and -210; see State v. Smith, 735 S.W.2d 859,

863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and the

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may not modify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorable candidate for alternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102(6). Our sentencing law also provides that “convicted felons committing

the most severe offenses, possessing criminal histories evincing a clear disregard

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall be given first priority regarding sentences involving

incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant sentenced to

eight (8) years or less who is not an offender for whom incarceration is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. However, the act does not provide that all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be
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determined by the facts and circumstances presented in each case. See State v.

Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

Additionally, the principles of sentencing reflect that the sentence should be

no greater than that deserved for the offense committed and should be the least

severe measure necessary to achieve the purposes for which the sentence is

imposed. Tenn. Code Ann. § 40-35-103(3) and (4). The court also should consider

the potential for rehabilitation or treatment of the defendant in determining the

sentence alternative. Tenn. Code Ann. § 40-35-103(5). 

Defendant does not contest the length of the sentence, only that the trial court

denied alternative sentencing. The trial court held that alternative sentencing was

inappropriate in this case, reasoning as follows:

This man [victim], as I said to repeat, was very brutally killed, and the

Defendants escaped a charge of second degree murder. When I say

escaped, I say they are not guilty. They are not going to trial on second

degree murder. It’s unfortunate that [the victim] behaved the way he

did, and it’s equally unfortunate and sad that the Defendants responded

the way they did, with extreme violence. As I said, alternative

sentencing is not appropriate, and I rely upon and follow Section 40-35-

103.

Confinement is necessary to avoid depreciating the seriousness of the

offense, for confinement is particularly suited to provide an effective

deterrence to others likely to commit a similar offense. Here we have

a man again who was killed, who is dead, who was a pathetic man, but

he was a child of God as we all are and he was killed, and this has

caused much grief to his family. And we have heard from the

Defendants, or the Defendants’ family, we have not heard from the

Defendants themselves, that they are remorseful about this thing. It is

a sad thing, a tragic thing, for [the victim], his family and now the

Defendants’ fam ily. 
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At the sentencing hearing, the trial court apparently relied upon the nature of

the circumstances of the offense to justify the denial of alternative sentencing and

to impose a sentence of total incarceration. For such a denial to occur, though, the

circumstances of the offense must be “especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and

the nature of the offense must outweigh all factors favoring a sentence other than

confinement.” State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995).

This standard was essentially codified by section 40-35-103(1)(B) which provides for

confinement if “necessary to avoid depreciating the seriousness of the offense.” 

When imposing a sentence of total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on the considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to protect society by

restraining a defendant with a long history of criminal conduct; whether confinement

is particularly appropriate to effectively deter others likely to commit a similar

offense; the need to avoid depreciating the seriousness of the offense, and the need

to order confinement in cases in which less restrictive measures have often or

recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-

103(1).

 In determining whether to grant probation, the judge must consider the nature

and circumstances of the offense, the defendant’s criminal record, his background

and social history, his present condition, including his physical and mental condition,
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the deterrent effect on other criminal activity, and the likelihood that probation is in

the best interests of both the public and the defendant. Stiller v. State, 516 S.W.2d

617, 620 (Tenn. 1974). The burden is on the Defendant to show that the sentence

he received is improper and that he is entitled to probation. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). 

We note that the transcript from the guilty plea hearing was not included in the

record on appeal. From our review of the sentencing hearing transcript, the trial

court apparently relied upon proof it had heard during the guilty plea hearing. It is

the duty of the party seeking appellate review to prepare a record which conveys a

fair, accurate and complete account of what transpired with respect to the issues

forming the basis of the appeal. 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 appeal, this court must presume that the trial court’s rulings

were supported by sufficient evidence. State v. Oody, 823 S.W.2d 554, 559 (Tenn.

Crim. App. 1991) (citations omitted). 

Based upon this presumption, this court concludes that the extremely violent

nature of the beating of the victim as noted by the trial court is a sufficient basis upon

which to deny alternative sentencing. The State met its burden in proving the

“especially violent, horrifying, shocking, reprehensible and offensive” circumstances

surrounding the victim’s death and the nature of Defendant’s offense outweighs all

factors favoring a sentence other than confinement. Bingham, 910 S.W.2d at 455.

While the existence of a death by itself cannot justify a sentence of total
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confinem ent, the circumstances surrounding Defendant’s actions were such that

justify his sentence. Similar to a previous decision by a panel of this court regarding

the trial court’s denial of a completely suspended sentence, the Defendant in the

case sub judice violently beat a total stranger who was apparently intoxicated,

striking and kicking him repeatedly. See State v. Brandon Harrison, 02C01-9206-

CR-00138, Shelby County (Tenn. Crim. App., at Jackson, August 4, 1993) (No Rule

11 application filed). Particularly in light of the fact that we do not have the guilty

plea transcript by which to review the circumstances of the offense, we presume that

the trial court aptly described the extremely violent and horrifying circumstances of

the beating which resulted in the victim’s death. 

Moreover, from a review of the Defendant’s presentence report, it is clear that

he has a history of misdemeanor offenses, including theft, bad check violations and

numerous traffic offenses. Despite past leniency and opportunities for rehabilitation,

the Defendant “has shown neither respect for the prior reprieves from incarceration,

nor efforts toward conforming his conduct to the dictates of the law. Having no

regard for measures less restrictive than confinement, the Defendant has through

his own actions rebutted the presum ption of his favorable candidacy for alternative

sentencing.” State v. Randal Thies, No. 02C01-9708-CC-00299, slip op. at 9, Tipton

County (Tenn. Crim. App., at Jackson, April 24, 1998) (No Rule 11 application filed).

In addition to the circumstances of the offense justifying the denial of an

alternative sentence due to the seriousness of the Defendant’s offense, the trial

court noted a lack of remorse by the Defendant. Lack of remorse is sufficient
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evidence by which a trial court may deny an alternative sentence. Smith, 735

S.W.2d at 864. The presentence report does not include any statement on behalf

of the Defendant. There is no justification provided by the Defendant to explain the

degree of force used. 
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There is not sufficient evidence whereby the sentence of total confinement

was not justified. After a thorough review, we affirm the judgment of the trial court.

____________________________________

THOMAS T. WOODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

JOHN EVERETT WILLIAMS, Judge