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

Briefs A pril 20, 20 04

STATE OF TENN ESSEE v. BRAND ON SHAWN JONES

Direct Appeal from the Criminal Court for K nox County No. 74736 Richard R. Baumgartner, Judge

No. E2003-02050-CCA-R3-CD May 13, 2004

The defendant, Brandon Shawn Jones, pled guilty to burglary

of a motor

vehicle and possession of burglary tools. The Knox County Criminal Court ordered the defendant to serve an effective twoyear sentence with 120 days in confinement followe d by probation. The de fendant appeals the denial of total pr obation. We

affirm t he judg ments of th e trial c ourt.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OE G. R ILEY , J., delivered the opinion of the cou rt, in which D AVID H. W ELLES and T HOM AS T. W OODA LL , JJ., joined.

Robert W. Whi

te, Mary ville, Te nnessee , for the

appella nt, Bra ndon Shaw

n Jones.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney Genera l; Randall E. Nichol s , Distri ct Attorney Ge neral; and Paula R. Ham, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

I. AB SENC E OF GUI LTY PL EA TR ANSCR IPT

The facts and circ u mstances of the offense were important to the trial cour t’s sentencing determinations; however, the transcript of the guilty plea proceeding is absent

from the record. Since

we deem the guilty

plea proceeding material

to the determination of the issue presented, our proper

course of actio n ordinar

ily i s t o sua spon te presume the trial court’s decision is correct. State v. Keen
, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); see also Stat e v. Co olid ge , 915 S.W.2d 820, 826-27 (Tenn. Crim. App. 1995) (specifically stating that the absence of a por tion of th e record relating to sentencing require s the court to presume the sentence is correct) . By fa iling to produce

anadequa te reco rd, a def

endant g eneral ly

waives any c laim that the conclusions of the trial court are incorre ct. See State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). However, because the-2-

availab le record amply

supports the sentencing decision of the trial court, w e will add

ress the merits of the issu

e raise d by

the defe ndant.

II. SENTENCING HEARING

The defenda

nt’s pre sentenc e repor

t was admi

t ted into evidence during the sentencing heari ng. The presentence report reflec ts the defendant has two convictions for simple as sault and one conviction each

for casual exchange of a c ontrolled substance, simple possessionof marijuana, and possession of burglary

tools. The defendant was convicted on all of these of fense after he had been arrested for the present offenses but prior to sentencing. The assault offenses were committed prior
to his arrest for the present offenses, while the re maining

offense s were c ommitted f ollowing his arrest f or the pr esent of fenses.

III. STANDA

RD OF RE VIEW

An appellate court’s review of a cha llen g ed sente

nce is de novo on the record with a presumption the trial court’s determinations ar e co rrect. Tenn. Code Ann. § 40-35-401(d). The Sentencing Com mission Comments to this section of the statute indicate the defendant bears the burden of establishing the sentence is improper. When the trial court follows the statutory sentencing procedure and gives due consideration and pr oper weight

to the fa ctors an d princip les rele

vant to sente ncing, this court may not disturb the sentence. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

IV. TOTAL P ROBATION

The defendant conten d s the tria l court e rred in d eny ing tota l probatio n. A defe

ndant is eligible for probation if the sentence receive d by the defe ndant is eight y ears or less, subj ect to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). An especially mitiga ted or standard offender convicted of a Class

C, D or E fe lony

is presumed to b e a favorable candidate for alternative sentencing i n the absence of evidence to the contrar y. Id. § 40-35-102(6). However, although a defendant may be presu med to be a favorable candidate for alternative sentencing, the defendant has the burden of establishing suitability f or total probation. Id. § 40-35-3 03(b); Stat e v. Boggs , 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In determining whether to grant or deny probat i on, a tri al court should consider the circumstances of the offe nse, the defendant’s criminal recor d, th e defendant’s social history and pre sent condition, the need for deterrence, a nd the best interest of the defendant and the public. State v. Grear , 568 S.W.2d 2 85, 286 (T enn. 1978 ); St at e v . B oyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).

Upon examining the record, we conclude the de fendant has n ot met his burden of establishing his entitlement to total probation. When the defendant was arrested for the present off enses, he had
two pending

assault c harge s f or which h e was convicted prior to sentencing in the pre sent case. Following his arrest, the defend ant co ntinued to commit cr

iminal off enses, in cluding another offense for possession of burglary

tools. The defendant’s continued criminal activi ty n egativ ely reflec ts-3-

upon his potent

ial for r ehabilita tion. Furt hermore , becau se the de fendant was conv

icted of these other five offenses prior to the sentencing hearing f or the instant offenses, they may be considered for purposes of sentencing. See State v. Jordan , 116 S.W.3d 8 , 24 (Ten n. Crim. App. 2003) (defining previous criminal convictions for enhancement purposes). The de fendant’s prior criminal convictions alone are sufficient to justify the denial of total probation.

W e conclude t he trial court did not err in requiring the defe ndant to serve 120 day s of incarc eration

as part o f his two- ye ar sente nce. Thi s issue is pa

tently without me

rit.

Ac co rd in gl y, we affirm the sentencing determinations of the trial court.

____________________________________ JOE G. RILE

Y, JUDGE