                                                                                          09/26/2019
             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      Assigned on Briefs May 15, 2019

                        STATE OF TENNESSEE v. JOHN C. MURRAY

                         Appeal from the Criminal Court for Wilson County
                                No. 16-CR-142 Brody Kane, Judge



                                        No. M2018-01150-CCA-R3-CD


The Defendant was convicted upon his guilty plea to theft of property valued at more
than $1,000 but less than $10,000, a Class D felony. See T.C.A. § 39-14-103(a) (2018)
(theft), 39-14-105 (Supp. 2015) (amended 2016) (grading of theft). The trial court
sentenced the Defendant to serve eight years as a Range II, multiple offender. On appeal,
the Defendant contends that the trial court erred in sentencing. We affirm the judgment
of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and CAMILLE R. MCMULLEN, JJ., joined.

Shelley Thompson Gardner, District Public Defender; and Kelly Skeen, Assistant District
Public Defender, for the Appellant, John C. Murray.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; Justin Harris,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                       OPINION

       According to the presentence report, which was received as an exhibit at the
sentencing hearing,1 the Defendant’s offense relates to his theft of a diamond from a
jewelry store on October 13, 2015. The Defendant replaced the diamond with a
counterfeit gem while the shopkeeper was distracted. The theft was not immediately


1
    The transcript of the guilty plea hearing was not included in the appellate record.
discovered, and the Defendant was eventually identified as the perpetrator after security
footage of the incident was released to the media. The Defendant admitted the theft and
told the authorities he had stolen diamonds and jewelry, which he sold to the owner of a
pawn shop, in order to obtain money to support his drug addiction. The Defendant stated
that he and others were involved for years in an ongoing theft scheme with the pawn shop
owner.

      The presentence report also reflects that the Defendant was fifty-two years old,
had dropped out of school in the ninth grade, had a lengthy history of criminal
convictions spanning his entire adult life, and had little employment history. The
conviction offenses listed in the presentence report include the following:

      theft of property valued at more than $1,000 but less than $10,000 – 7
      counts

      theft of property valued at $500 or less – 11 counts

      attempted theft of property valued at $10,000 but less than $60,000

      theft of property valued at $10,000 but less than $60,000

      misdemeanor assault – 5 counts

      violation of the driver’s license law – 3 counts

      casual exchange of narcotics – 2 counts

      driving while license suspended, cancelled, or revoked – 14 counts

      unspecified traffic offense – 5 counts

      disorderly conduct

      reckless endangerment involving a deadly weapon – 2 counts

      reckless driving

      aggravated assault

      unspecified weapons offense – 3 counts

      shoplifting – 11 counts

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      possession of drug paraphernalia

      possession of burglary tools

      grand larceny – 5 counts

      petit larceny

      vehicular assault – 2 counts

      passing a worthless check

      fraudulent use of a credit card – 3 counts

      trespassing

       Julie Raines, who prepared the presentence report, testified that she confirmed the
Defendant had at least eight violations of probation, parole, or community corrections.
She testified about the dates and his classification of property crime convictions. When
she was questioned about whether shoplifting and theft convictions from 1991 which had
the same docket number were based upon events occurring on the same date, she said
they occurred on different dates. Similarly, she said two shoplifting convictions from
1988 which had the same docket number were based upon events occurring on different
dates. Likewise, she said two grand larceny convictions from 1987 which had the same
docket number were based upon events occurring on different dates. She said the
information in the presentence report was accurate, based upon the information she
received.

       Ms. Raines testified that the information she had reviewed supported a conclusion
the Defendant was cooperative with the authorities. She acknowledged that the
Defendant had participated in a treatment program during a prior period of incarceration.
She agreed that the risk assessment reflected that the Defendant was at a moderate risk of
reoffending.

       In his allocution, the Defendant stated that many of his family members had
predeceased him and that he was on the verge of losing his relationships with other
family members. He said he wanted to do the right things to avoid losing relationships
with his daughter and his grandchildren. He said the prospect of losing his relationships
with family members would keep him from breaking the law.



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        After receiving the evidence and the Defendant’s allocution, the trial judge stated
that the parties had agreed pursuant to the plea agreement for the Defendant to be
sentenced as a Range II offender, notwithstanding the fact that the Defendant had
sufficient prior convictions to qualify as a Range III offender. The court noted that the
Defendant had either eight or nine qualifying felony convictions, depending upon
whether an error existed in the presentence report.

       The trial court applied enhancement factors based upon the Defendant’s history of
criminal convictions or behavior in addition to those necessary to establish the
appropriate range, failure to comply with the conditions of a sentence involving release
into the community, and commission of the present offense while on probation for
another offense. See T.C.A. § 40-35-1114(1), (8), (13) (Supp. 2015) (amended 2016,
2018). The court found that these factors were entitled to significant weight. The court
applied a mitigating factor based on a finding that the offense did not cause or threaten
serious bodily injury. See id. § 40-35-113(1) (2014).

       The trial judge remarked that he had been in criminal practice or on the bench for
twenty-two years and had never seen a presentence report with as extensive a criminal
history as the Defendant’s. The judge stated the importance of protecting the public from
future thefts and noted that measures less restrictive than confinement had been applied
frequently or recently. The judge imposed an eight-year sentence to be served in the
Department of Correction, the maximum sentence for a Range II offender for a Class D
felony. The judge ordered that the sentence be served consecutively to an existing
Robertson County sentence. This appeal followed.

      The Defendant contends that the trial court abused its discretion in imposing a
maximum, incarcerative sentence. He argues that the court relied upon an inaccurate and
unsubstantiated presentence report. The State responds that the Defendant has failed to
overcome the presumption of reasonableness afforded to the trial court’s sentencing
determination. We agree with the State.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103, -210; State v. Moss, 727


                                            -4-
S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.
1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors are
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

        As a prefatory matter, we note that the transcript of the guilty plea hearing is not
part of the appellate record. See State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim.
App. 1999) (“[A] transcript of the guilty plea hearing is often (if not always) needed in
order to conduct a proper review of the sentence imposed.”); see also T.R.A.P. 24(b)
(stating that the appellant has the duty to prepare a record which conveys a “fair,
accurate, and complete account of what transpired with respect to those issues which are
the bases of appeal.”). An appellant who fails to include the transcript of the guilty plea
hearing in the record risks waiver of a sentencing issue. Neverthless, an appellate court
will consider on a case-by-case basis whether a record is sufficient for review. State v.
Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). In the present case, we will consider the
Defendant’s sentencing issue on its merits, notwithstanding the absence of the transcript
of the guilty plea, because the facts of the offense are stated in the presentence report.

       The Defendant argues that the presentence report contained inaccurate
information. He argues that he is identified by an incorrect first name in a portion of the
report and points to the conviction offenses with different incident dates but the same
docket number about which Ms. Raines was questioned at the sentencing hearing. He
also argues that additional conviction offenses listed in the presentence report have
similar errors. Ms. Raines testified at the hearing that she gathered information about the
convictions from electronic and documentary records and that the information she
compiled in the report was accurate according to those sources. The Defendant did not
offer evidence to the contrary relative to the prior convictions, did not raise an issue
regarding any misidentification, and did not object to the introduction of the report as an
exhibit at the hearing. Aside from the convictions the Defendant challenges as inaccurate
on appeal, the Defendant’s criminal record is lengthy. Further, the court relied on two
additional enhancement factors, and the Defendant has not challenged the application of
these factors. The court weighed all of the enhancement factors heavily.



                                            -5-
       The Defendant’s eight-year sentence was within the range for a Range II, Class D
felony, and the record reflects that the trial court considered and applied the purposes and
principles of the Sentencing Act in reaching its determination. As such, we presume that
the sentence is reasonable. See Bise, 380 S.W.3d at 706-07. The Defendant has not
demonstrated on appeal that the court abused its discretion in relying on the presentence
report and in imposing an eight-year incarcerative sentence.

        In consideration of the foregoing and the record as a whole, the judgment of the
trial court is affirmed.


                                            _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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