         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 11, 2003 Session

               STATE OF TENNESSEE v. CONSUELA P. CARTER

                    Appeal from the Circuit Court for Rutherford County
                             No. F-51990    Don R. Ash, Judge



                    No. M2002-01100-CCA-R3-CD - Filed March 27, 2003


The defendant, Consuela P. Carter, appeals the Rutherford County Circuit Court’s denial of full
probation for her conviction for possessing with intent to sell less than one-half gram of cocaine, a
Class C felony. She was sentenced to five years, with probation after serving nine months. We
affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Russ F. Eagle, Murfreesboro, Tennessee, for the appellant, Consuela P. Carter.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The record reflects that on September 1, 2001, the defendant was the passenger in a car that
was traveling on Sam Ridley Boulevard. A Rutherford County police officer noticed that the car did
not have any brake lights and that its driver and passenger appeared to be smoking a marijuana
cigarette. The officer stopped the car, and the driver admitted to smoking marijuana. During a
search of the car, the officer found a small bag of marijuana and crack cocaine. The defendant told
the officer that the drugs were hers and that she had more drugs on her person. The officer retrieved
about 3.5 grams of crack cocaine from the defendant, and she was indicted for possessing one-half
gram or more of cocaine with intent to sell and simple possession of marijuana. Pursuant to a plea
agreement, the defendant pled guilty on March 12, 2002, to possessing with intent to sell less than
one-half gram of cocaine and received a five-year sentence with the manner of service to be
determined by the trial court. The charge of simple possession of marijuana was dismissed.
        At the sentencing hearing, the defendant acknowledged that she had committed a crime but
said that in the last nine months, she had changed. She said that she had stopped using drugs and
that she was going to work and church. She said that she had been working at the Hampton Inn for
nine months and that she also took care of her young niece and nephew. She said that she was
worried about having to go to jail and that she would not use drugs anymore. She said that she was
not receiving treatment for her drug problem but that she was going to work and keeping God in her
life. She said that if the trial court required her to seek drug treatment as a condition to her
probation, she would welcome it. She said, though, that she did not think she would start using
drugs again because she had too much to lose if she went to jail. She acknowledged having prior
convictions for simple possession and driving on a suspended license but said that she had no prior
felony convictions.

        On cross-examination, the defendant said that she was on her way to a party when the police
officer stopped her and that the marijuana and cocaine she was carrying were for her and her friends.
She said that she did not hang around those friends anymore, that she had learned her lesson, and that
she was “done with it.” She said that for her last drug conviction, she received probation and had
to take random drug tests for six months. She said that she stayed off drugs during that six month
period and that she never failed a drug test. She said that after the six month period, she started
using drugs again because she was hanging around the wrong group of people. She said that she had
been raising her sister’s two children since they were two years old and that the children stayed with
her mother when she went to parties. She said that although she had done drugs while raising the
children, she had never done drugs in front of them. Upon questioning by the trial court, she said
that she continued to use marijuana after her arrest for the offense in question and acknowledged that
in the presentence report, she stated that the last time she smoked marijuana was on February 15,
2002. She said that she had stopped partying and was drug-free.

         Colleen Carter, the defendant’s mother, testified that she loved the defendant and that she did
not want the defendant to go to jail. She said that the defendant had stopped hanging around the
defendant’s usual friends, worked every day, and had joined the church. She said that the
defendant’s September arrest was a wake-up call for the defendant and that the defendant was
stressed over her conviction. She said that the defendant was good-hearted and was very important
in the lives of the defendant’s niece and nephew. She said that the defendant was strong and would
stay off drugs but that a drug treatment program might help the defendant. She said that she did not
think the defendant would use drugs again and that she would keep her eye on the defendant.

        The defendant’s presentence report reveals that the then thirty-year-old defendant dropped
out of high school in the eleventh grade and did not obtain her GED. In the report, the defendant
stated that she was in good physical and mental health and that she drank alcohol occasionally. She
also said that she began using marijuana when she was seventeen years old and that she started using
cocaine at age twenty-two. According to the report, the defendant was working at the Hampton Inn
as a housekeeper and worked at Steven’s Grocery from 1994 until 1997. The report shows that the
defendant has prior convictions for simple possession, driving on a suspended license, and criminal
impersonation.


                                                  -2-
       The trial court determined that the defendant should spend nine months of her five-year
sentence in incarceration. In denying her request for full probation, the trial court noted that the
defendant smoked marijuana about two months before the hearing and said the following:

                        Ma’am, in considering whether or not to [suspend] your
               sentence, let me tell you what I looked at. First of all I looked at your
               high school education and you’ve been out for quite a while and
               really haven’t done anything to further your education until that time.
                        You’ve done really nothing to rehabilitate yourself except for
               the last two months when you had a jail sentence over your shoulder.
               You have been working. But your work history is spotty at best. You
               seem to be in good physical and mental condition.
                        In considering your prior criminal record, I think . . . it is
               limited. Two of those offenses [were] driving while license is
               suspended. And then you pled guilty to a serious offense, which is
               this possession of crack cocaine.
                        So, based upon those things I’m going to find that this is an
               appropriate sentence for split confinement. . . .

        The defendant contends that the trial court erred by denying her request for full probation.
She claims that she should have received full probation because she is a young woman, has only
misdemeanor prior convictions, and cares for two children. She also contends that the trial court
should not have used her presentence report admission to using marijuana on February 15 against
her and that her sentence of nine months in confinement is disproportionate to other defendants in
similar circumstances. The state contends that the trial court properly sentenced the defendant. We
agree with the state.

        Appellate review of the manner in which a sentence is to be served is de novo on the record
with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §
40-35-401(d). However, this presumption of correctness is conditioned upon the affirmative
showing that the trial court considered the relevant facts, circumstances, and sentencing principles.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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).

        A defendant seeking full probation bears the burden on appeal of showing that the sentence
imposed is improper and that full probation will be in the best interest of the defendant and the
public. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). “Among the factors
applicable to probation consideration are the circumstances of the offense; the defendant’s criminal
record, social history and present condition; the deterrent effect upon the defendant; and the best
interests of the defendant and the public.” State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.


                                                 -3-
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). Also, a defendant’s rehabilitation
potential and the risk of repeating criminal conduct are fundamental in determining whether
probation is appropriate. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); see Tenn.
Code Ann. § 40-35-103(5).

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
her own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

        Initially, we note that any evidence presented at the guilty plea hearing should be considered
in determining the appropriate sentence. See Tenn. Code Ann.§ 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 her conviction. 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. This court notes that 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 Tenn. Code Ann. § 40-35-210(b). In any event, we conclude the trial
court did not err in denying the defendant’s request for full probation.

        Relative to the defendant’s admission of drug use to the presentence officer, we note that a
similar admission was used by the trial court in the recent case of State v. George J. Johnson, No.
M2002-01054-CCA-R3-CD, Williamson County (Tenn. Crim. App. Dec. 10, 2002), to deny judicial
diversion. In reversing the trial court, this court stated the following:

               We acknowledge the trial court’s concern with the Appellant’s prior
               uncharged drug use as set forth in the pre-sentence report. Although
               a relevant factor, we remain mindful of the fact that the pre-sentence
               report was never intended to serve the purpose of gathering
               incriminating evidence to punish the offender. The offender is
               encouraged to be truthful and participate in the preparation of the pre-
               sentence report in order that information provided may be utilized by
               the sentencing court in arriving at an individualized sentence. To use
               the offender’s statements within the report against the offender is
               counter-productive in that it discourages truthfulness and is
               inconsistent with the purposes of the pre-sentence report.

George J. Johnson, slip op. at 3. Similarly, in this case the defendant contends that the trial court
should not have used her statement in the presentence report that she used marijuana on February
15, 2002, against her. However, as noted in George J. Johnson, information contained in the
presentence report is necessary in order for the trial court to determine the appropriate sentence for
a defendant. Given that a trial court is required to consider a defendant’s potential or lack of


                                                  -4-
potential for rehabilitation in requests for full probation, we believe the trial court properly took the
defendant’s admission into account. Also, unlike George J. Johnson, in which the trial court based
its decision to deny judicial diversion primarily on the defendant’s admission to prior drug use, the
record in this case reflects that the trial court considered other factors such as the defendant’s poor
employment history, her failure to obtain a GED, and her prior criminal record.

        At the sentencing hearing, the defendant claimed that she had stopped taking drugs and was
“done with it.” However, when cross-examined about her admission in the presentence report, the
defendant acknowledged that she had smoked marijuana two months before the hearing. Moreover,
she stated that for her prior drug conviction, she managed to stay off drugs for six months but
resumed her drug use as soon as drug screens were no longer required. The fact that the defendant
has failed to seek treatment indicates that she does not believe she has a drug problem and that she
does not reflect a high potential for rehabilitation. In light of this and the other circumstances in the
defendant’s case, the trial court did not err in denying her request for full probation.

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



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




                                                  -5-
