# FILED
October 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1999 SESSION

STATE OF TENN ESSEE , * C.C.A. NO. 02C01-9902-CC-00079 Appellee, * MCNAIRY COUNTY
v. * Hon. John Kerry Bla ckwood, Judge JIMMY LEWIS MATLOCK , * (Sentencing) Appellant. *

For Appellant : For Appellee : Clifford K. McGown, Jr. Paul G. Summers 113 North Court Square Attorney General and Repor ter P.O. Box 26 450 James Robertson Parkwa y Waverly, TN 37185 Nashville, TN 37243-0493 (On Appe al Only) Patricia C. Kussman Gary F. Antrican Assistant Attorney Gener al 118 East Market 425 Fifth Avenue North P.O. Box 700 2d Floor, Cordell Hull Bldg. Somerville, TN 38068 Nashville, TN 37243-0493 (At Tri al and Of Counsel On Appeal)

OPINION FILED: ____________________

AFFIRMED
NORMA MCGEE OGLE, JUDGE1 The reco rd ref lects that th e app ellant also p led gu ilty to se xua l batte ry on th e sam e dat e in McN airy Coun ty Court C ase # 1 105; how ever the re cord do es not c ontain the judgm ent of co nviction. That conviction and sentence are not challenged. 2 OPINION On October 14, 1998, the appellant,Jimmy Lewis Matloc k, pled guilty in the McNairy Count

y Criminal Court to

especially aggr

avated sexual exploi

tation of a minor, a class B fe lony. 1 On November 2, 1998, the tr ial court sentenced the appellant as a Range I standard offender to an effective sentence of twelve years incarceration in the Tennessee Department of Correction. The appel lant contends that the trial court err

ed by imposing a sentence o f twelve years. F

ollowing a revi ew of the record and the parties’ br iefs, we affirm the judgment of the tr ial court.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de nov o review with

a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption of correctness is “conditioned upon the affirmative showing in the record that the tria l court considered the sente ncing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upo n the appellant to demonstrate the impropriety of the sentence. State v. Wilkerson , 905 S.W.2d 933, 934 (Tenn. 1995).

Our review of the appell ant’s sentence requires an analysis of (1) the evidence, if any, received at trial and at the sentencing hearing; (2) the presentence report; (3) the princi ples of sentencing and the arg uments of counsel relative to sentencing alternativ

es; (4) the nature and charac teristics of the offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his3 own behalf; and (7) the appell ant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102, -103, and -210 (1997).

The presumptive sentence for Cl ass B, C, D, and E felonies i s the minimum sentence in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210 (1997). If the trial court finds that there are enhancement or mitigating factors, the court must start at th e minimum sentence in the range, enhance the sentence w ithin the range as appropr iate for the enhancement factors, and then reduce the s entence within the rang e as appropriate for the mitigating factors. Id. The weight give n to any existing factor is left to the trial court’s discr

etion so long as the trial court complies with the purposes and principles of sentencing an d the court’s findings are adequately supported by the record. State v. Shropshire , 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993). See also State v. Shelton , 854 S.W.2d 116, 12 3 (Tenn. Crim. App. 1992).

Initially, we note

that for those defendants who plead g uilty, the guilty plea hearing is the equi valent of a trial, in that it allows the State the o pportunity to present the facts underlying the offense. See State v. Keen , No. 01C01-9802-CR00074, 1999 WL 16 801, at *1 (Tenn. Crim. App. at Nashville, January 19, 1999); State v. Rhodes , No. 03C01-9405-CR-00 174, 1995 WL 424956, at *2 (Tenn. Cr

im. App. at Knoxville, J uly 20, 1995). For thi s reason, a transcript of the guilty plea hearing is often (if not alw ays) needed in order to c onduct a proper review of the sentence imposed as contemplated by Tenn. Code Ann. § 40-35-210 (1997). Keen , No. 03C01-9405-CR-00174, 1995 WL 424956, at *1.

Here, the record on appeal does not contain a transcript of the guilty plea hearing. Some of the most basi c facts underlying the c onviction appear in the2 This convict ion and sentence are not the basis of th is appeal bu t are incl uded to provi de som e factua l backg round.

3 It is the policy of this court to w ithhold nam es of m inors su bjected to sexu al abuse

. 4 presentence report, but those facts are not eno ugh to properly review the sentence in this case. The appellant has the burden to prepare a recor d on appeal that presents a complete and accurate account of what transpired i n the trial court with respect to the issues on appeal . Tenn. R. App. P. 24(b). The failur e to do so results in a waiver of such issues and a presumption that the findings of the trial court are correct. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

From the portions of the record on appeal, we are able to deter mine that on October 14, 1998, the appellant pled guilty to sexual battery in McNairy County in a case involving Angela Jones. 2 Furthermore, on October 12, 1998, the McNairy County grand jury indicte d the appellant for especially aggravated sexual exploitation of a minor in the case involving C.N.. 3 Two days later, th e appellant pled guilty to this offense pursuant to an indictment that sta ted: Jimmy Lewis Matlock between October 17 and December 6, 1997, in McNair y County, Tennessee, and before the find ing of thi s indictm ent, did unlawful ly, feloniously and knowing ly employ, use, or per mit [C.N.], a minor, to participate in the performance or in the production of material whic h includes the minor engag ing in sexual activit

y. . . . At the sentencing hearing, the State requested that the presente nce report be made part of the technical record and the a ppellant had no objections to it being entered. Moreove r, appellant’s counsel st ated, “We’ve had a chance to review the presentenc

e report and we stipulat e to it . . . .” Neither

the State nor the appellant presented additional proof. The presentence report indi cated that the appellant had six convictions in Hardin County for violating Tennessee’s bad check law and one convicti on for attempted rape. The report als o included a conviction for5 rape in Tippah County, Mi ssissippi. The State offered as an ex hibit a certified copy of the appellant’s Hardin Count y attempted rape judgment, but only presented a copy of the indictment for the appel lant’s Mississippi rape conviction.
In the instant case, the appellant was convicted as a Range I offender of especially aggrav

ated sexual exploitati on of a minor, a class B felony. Tenn. Code Ann. § 39-17-1005 (1997). The sentencing range applic able to the appellant for this offense is eight year s to twelve year

s. Tenn. Code Ann. § 40-35-112 (a) (2) (1997). The appellant receiv ed the maximum sentence of twelv e years.
In determining the appellant’s sentence for the con viction of especially aggravated sexual

exploitation of a minor, the trial court found one enhancement factor: the appellant has a prev ious history of criminal convictions or cr iminal behavior in addition to those necessary to establi sh the appropriate range. The trial court found that the only mitigating factor was that the appellant ad mitted his guilt and thus concluded that the appellant’s prior criminal history outweighed his admission of guilt. As a result, the appellant was sentenced to twelve years incarceration in the Depar tment of Corrections.
First, the appellant complai ns that the trial court er red by considering the Mississippi rape c

onviction to further establ ish prior criminal hi story. The trial court relied on the presenten ce report and a Tippah County,Mississippi indic tment for rape to establish the appell ant’s Mississippi r ape conviction. The appellant argued that the State was required to produce a cer tified copy of the Mississ ippi conviction before the trial court could consider that conviction. We cannot agree.

This court has previously stated that the trial court is in the best6 position to know the procedures used by the presentence off icers in his or her court and is entitled to rely on such report’s contents, absent a showing that the report is based upon unreliable sources or is otherwise inac curate. State v. Crossman , No. 01C01-9311-CR-00394, 1994 WL 548712, at *6 (Tenn. Cr im. App. at Nashville, October 6, 1994).

In this case, the State offered the pre sentence report and the appellant did not object to it being entered. The appellant did not chal lenge the existence of the Missis sippi rap e convicti on, only a rguing tha t the Sta te was requi red to have certified copies of the convi ction before it could be used to en hance the sentence. We conclude that the appellant’s reaction by not objecting to the exi stence of the proffered convictions in the p resentence report provi des an adequate indicia of reliability. See State v. Hines , No. 01C01-9406-CC-00189, 1995 WL 316304, at *3 (Tenn. Crim. App. at Nashv ille, May 25, 1995). Therefore, the trial court’s use of the prior convictions de

scribed in the presentence r eport was permissible

and based on competent evidence. This iss ue is without merit.

The app ellant al so conte nds that the trial c ourt impo sed an exc essive sentence and that the appellant is an appropriate candidate for sente ncing under the “special needs” prov ision of the Community Corr ections Act. Howev

er, central to our holding in this c

ase is the fact that the record on appeal does not contain a transcript of the guilty

plea hearing nor any other record of the nature and circumstances of the criminal conduct other than the findings by the trial court and the prese ntence re port. Th us, we are n ot in a pos ition to c onduct a proper de novo review of the sentence by which we must consi der the evidence receiv ed at trial and the nature and characteristi cs of the criminal conduct. See Tenn. Code Ann. § 40- 35-210(b). Because the recor d is incomplete, we must pr esume that had all the7 evidence considered by the trial court been included in the record on appeal, it would have supported the sentence imposed by the tria l court. See State v. Ivy , 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993); Oody , 823 S.W.2d at 559; State v. Meeks , 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988). Mor eover, the obligation o

f preparing a complete and adeq uate record for the issues on appeal rests with the appellant. Tenn. R. App. P. 24(b)

.

Nevertheless, the reco rd reflects that the appellant h as now been convicted of three sex-related offenses, at least one of which involved a child. Thus, despite the inadequate recor d, we can conclude that it is adequate to determine that the trial court did not er r in sentencing the appell ant to a twelve year sentence in the Department of Corrections.

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Norma McGee Ogle, Judge

CONCUR:

_____________________________ David H. Wel les, Judge

_______________________________ Thomas T. W oodall, Judge