           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON           FILED
                          JUNE 1999 SESSION
                                                      October 29, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         *                    Appellate Court Clerk
                                   C.C.A. NO. 02C01-9902-CC-00079

      Appellee,             *      MCNAIRY COUNTY

v.                          *      Hon. John Kerry Blackwood, Judge

JIMMY LEWIS MATLOCK,        *      (Sentencing)

      Appellant.            *




For Appellant:                     For Appellee:

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




OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                   OPINION

                  On October 14, 1998, the appellant, Jimmy Lewis Matlock, pled guilty

in the McNairy County Criminal Court to especially aggravated sexual exploitation of

a minor, a class B felony. 1 On November 2, 1998, the trial 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 appellant contends

that the trial court erred by imposing a sentence of twelve years. Following a review

of the record and the parties’ briefs, we affirm the judgment of the trial court.



                  When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo 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 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 upon the appellant to demonstrate the

impropriety of the sentence. State v. Wilkerson, 905 S.W.2d 933, 934 (Tenn. 1995).




                  Our review of the appellant’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 principles of sentencing and the arguments of counsel relative to

sentencing alternatives; (4) the nature and characteristics of the offenses; (5) any

mitigating or enhancement factors; (6) any statements made by the appellant on his


         1
         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
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn.

Code Ann. § 40-35-102, -103, and -210 (1997).



              The presumptive sentence for Class B, C, D, and E felonies is 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 the minimum sentence in

the range, enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as appropriate

for the mitigating factors. Id. The weight given to any existing factor is left to the

trial court’s discretion so long as the trial court complies with the purposes and

principles of sentencing and 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, 123 (Tenn. Crim. App. 1992).



              Initially, we note that for those defendants who plead guilty, the guilty

plea hearing is the equivalent of a trial, in that it allows the State the opportunity to

present the facts underlying the offense. See State v. Keen, No. 01C01-9802-CR-

00074, 1999 WL 16801, at *1 (Tenn. Crim. App. at Nashville, January 19, 1999);

State v. Rhodes, No. 03C01-9405-CR-00174, 1995 WL 424956, at *2 (Tenn. Crim.

App. at Knoxville, July 20, 1995). For this reason, a transcript of the guilty plea

hearing is often (if not always) needed in order to conduct 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 basic facts underlying the conviction appear in the


                                             3
presentence report, but those facts are not enough to properly review the sentence

in this case. The appellant has the burden to prepare a record on appeal that

presents a complete and accurate account of what transpired in the trial court with

respect to the issues on appeal. Tenn. R. App. P. 24(b). The failure 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 determine

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 indicted the appellant for especially aggravated sexual

exploitation of a minor in the case involving C.N..3                   Two days later, the appellant

pled guilty to this offense pursuant to an indictment that stated:

                   Jimmy Lewis Matlock between October 17 and
                   December 6, 1997, in McNairy County, Tennessee, and
                   before the finding of this indictment, did unlawfully,
                   feloniously and knowingly employ, use, or permit [C.N.],
                   a minor, to participate in the performance or in the
                   production of material which includes the minor engaging
                   in sexual activity. . . .


                    At the sentencing hearing, the State requested that the presentence

report be made part of the technical record and the appellant had no objections to it

being entered. Moreover, appellant’s counsel stated, “We’ve had a chance to

review the presentence report and we stipulate to it . . . .” Neither the State nor the

appellant presented additional proof. The presentence report indicated that the

appellant had six convictions in Hardin County for violating Tennessee’s bad check

law and one conviction for attempted rape. The report also included a conviction for


        2
         This conviction and sentence are not the basis of this appeal but are included to provide
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
rape in Tippah County, Mississippi. The State offered as an exhibit a certified copy

of the appellant’s Hardin County attempted rape judgment, but only presented a

copy of the indictment for the appellant’s Mississippi rape conviction.



              In the instant case, the appellant was convicted as a Range I offender

of especially aggravated sexual exploitation of a minor, a class B felony. Tenn.

Code Ann. § 39-17-1005 (1997). The sentencing range applicable to the appellant

for this offense is eight years to twelve years. Tenn. Code Ann. § 40-35-112 (a)(2)

(1997). The appellant received the maximum sentence of twelve years.



              In determining the appellant’s sentence for the conviction of especially

aggravated sexual exploitation of a minor, the trial court found one enhancement

factor: the appellant has a previous history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range. The trial

court found that the only mitigating factor was that the appellant admitted 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 Department of Corrections.



              First, the appellant complains that the trial court erred by considering

the Mississippi rape conviction to further establish prior criminal history. The trial

court relied on the presentence report and a Tippah County, Mississippi indictment

for rape to establish the appellant’s Mississippi rape conviction. The appellant

argued that the State was required to produce a certified copy of the Mississippi

conviction before the trial court could consider that conviction. We cannot agree.



              This court has previously stated that the trial court is in the best


                                            5
position to know the procedures used by the presentence officers 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 inaccurate. State v. Crossman, No.

01C01-9311-CR-00394, 1994 WL 548712, at *6 (Tenn. Crim. App. at Nashville,

October 6, 1994).



              In this case, the State offered the presentence report and the appellant

did not object to it being entered. The appellant did not challenge the existence of

the Mississippi rape conviction, only arguing that the State was required to have

certified copies of the conviction before it could be used to enhance the sentence.

We conclude that the appellant’s reaction by not objecting to the existence of the

proffered convictions in the presentence report provides an adequate indicia of

reliability. See State v. Hines, No. 01C01-9406-CC-00189, 1995 WL 316304, at *3

(Tenn. Crim. App. at Nashville, May 25, 1995). Therefore, the trial court’s use of the

prior convictions described in the presentence report was permissible and based on

competent evidence. This issue is without merit.



              The appellant also contends that the trial court imposed an excessive

sentence and that the appellant is an appropriate candidate for sentencing under

the “special needs” provision of the Community Corrections Act. However, central

to our holding in this case 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 presentence report. Thus, we are not in a position to conduct a proper de novo

review of the sentence by which we must consider the evidence received at trial and

the nature and characteristics of the criminal conduct. See Tenn. Code Ann. § 40-

35-210(b). Because the record is incomplete, we must presume that had all the


                                           6
evidence considered by the trial court been included in the record on appeal, it

would have supported the sentence imposed by the trial 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). Moreover, the obligation of

preparing a complete and adequate record for the issues on appeal rests with the

appellant. Tenn. R. App. P. 24(b).



              Nevertheless, the record reflects that the appellant has now been

convicted of three sex-related offenses, at least one of which involved a child. Thus,

despite the inadequate record, we can conclude that it is adequate to determine that

the trial court did not err in sentencing the appellant to a twelve year sentence in the

Department of Corrections.



              Accordingly, the judgment of the trial court is affirmed.




                                          __________________________________

                                          Norma McGee Ogle, Judge



CONCUR:



_____________________________

David H. Welles, Judge



_______________________________

Thomas T. W oodall, Judge




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