         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs May 18, 2004

              STATE OF TENNESSEE v. DARIAN NIGEL SPARKS

                      Appeal from the Criminal Court for Knox County
                      Nos. 75820, 77714  Richard Baumgartner, Judge



                                 No. E2003-02021-CCA-R3-CD
                                         June 21, 2004

The defendant, Darian Nigel Sparks, pled guilty in the Knox County Criminal Court to robbery and
the attempted sale of a Schedule I controlled substance, Class C felonies. Pursuant to the plea
agreement, the defendant received consecutive sentences of eight years for each offense, with the
manner of service to be determined by the trial court. After a sentencing hearing, the trial court
denied the defendant’s request for alternative sentences and ordered that he serve his sentences in
the Department of Correction. The defendant appeals, claiming that the trial court erred by ordering
that he serve his sentences in confinement. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN , JJ., joined.

Richard A. Major, Knoxville, Tennessee, for the appellant, Darian Nigel Sparks.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Marsha Mitchell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the defendant’s robbing The Favorite Market on July 27, 2002, and his
attempting to sell fifty Ecstasy pills in a Kroger parking lot on February 13, 2003. With regard to
the defendant’s robbery conviction, the presentence report reflects that the defendant entered the
store, approached the counter, and left the store. He then reentered the store through another
entrance, pulled out a gun, and placed a newspaper over it. He approached the cashier, telling her
to give him the money from the register. When the cashier did not act quickly enough, the defendant
removed the tray with the money from the register. He told the cashier to go to the back room in the
store and that he would not hurt her. The defendant then shut the door to the back room and left with
the money. With regard to the defendant’s conviction for attempting to sell Ecstasy pills, on
February 13, 2003, the police saw the defendant get out of his car and enter another vehicle in a
Kroger’s parking lot. After investigating the incident, the defendant admitted that he was trying to
sell fifty Ecstasy pills.

        The presentence report reflects that the then twenty-six-year-old defendant was a high school
graduate and was married with two children. The report shows that the defendant has multiple
juvenile offenses, including two aggravated assaults and theft of a car. In the report, the defendant
stated that he was in good health. He also stated that he began using alcohol, marijuana, and LSD
when he was seventeen; cocaine and Ecstasy when he was twenty-three; and crack cocaine and
methamphetamine when he was twenty-five. He stated, however, that he did not like using drugs.

         At the sentencing hearing, the trial court stated that the defendant was not an appropriate
candidate for probation and ordered his sentences be served in confinement. In making this
determination, the trial court stated that the defendant committed five felonies as a juvenile and that
his sentences involving probation for these felonies were unsuccessful in altering the defendant’s
conduct. The court noted that the defendant had committed the current drug offense while on bond
in the robbery case. The court also considered the defendant’s failure to appear in court or for court-
ordered evaluations on several occasions.

        The defendant contends that the trial court improperly denied his request for alternative
sentencing. He argues that confinement was not necessary to protect society from him. See T.C.A.
§ 40-35-103(1)(A). He states that he has no convictions as an adult and argues that this should be
considered in determining whether probation is appropriate. Finally, he argues that probation is not
necessary to avoid depreciating the seriousness of the offenses. See T.C.A. § 40-35-103(1)(B). The
state responds that the trial court properly denied the defendant’s request for alternative sentences.
We agree with the state.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). The burden is on the appealing party to show that the sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments. This means that if the trial court followed the
statutory sentencing procedure, made findings of fact that are adequately supported in the record, and
gave due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

       When determining if incarceration is appropriate, a trial court should consider that (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit


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similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. §
40-35-103(1)(A), (C)). Additionally, a trial court should consider a defendant’s potential or lack of
potential for rehabilitation. T.C.A. § 40-35-103(5).

        Initially, we note any evidence presented at the guilty plea hearing should be considered in
determining the appropriate sentence. See T.C.A. § 40-35-210(b)(1). However, the defendant has
failed to include in the record on appeal a transcript of the guilty plea hearing relating to his
convictions. It is the duty of the defendant to prepare a fair, accurate, and complete record on appeal
to enable meaningful appellate review. T.R.A.P. 24. Failure to include the transcript of the guilty
plea hearing in the record prohibits the court’s conducting a full de novo review of the sentence
under T.C.A. § 40-35-210(b).

        In any event, we conclude that the trial court did not err by ordering the defendant to serve
his sentences in incarceration. The defendant committed multiple offenses as a juvenile, including
two aggravated assaults and a car theft. See State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim.
App. 1996) (stating that courts may consider the failure of probation following juvenile adjudications
of unruliness in denying an alternative sentence). In this case, despite receiving probation for his
juvenile offenses, the defendant continued to act illegally, as shown by the present convictions. This
does not reflect a high potential for rehabilitation. See T.C.A. § 40-35-103(1)(C). The trial court
properly denied the defendant’s request for alternative sentences.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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