         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 2, 2004

                   STATE OF TENNESSEE v. RODNEY WELCH

                   Direct Appeal from the Circuit Court for Gibson County
                          No. 15874 Jon Kerry Blackwood, Judge



                  No. W2004-00789-CCA-R3-CD - Filed February 15, 2005


The defendant, Rodney Welch, pled guilty to unlawful possession of .5 grams or more of cocaine
with the intent to sell, a Class B felony, and was sentenced to eight (8) years, as a Range I standard
offender, with six (6) months to be served in confinement and the balance to be served in the
Community Corrections Program. The trial court subsequently revoked the defendant’s community
corrections sentence and re-sentenced the defendant to eleven (11) years in the Tennessee
Department of Correction. On appeal, the defendant challenges the trial court’s revocation of his
community corrections sentence and re-sentence of eleven (11) years in the Tennessee Department
of Correction. Upon review, we affirm the judgment of the trial court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Tom W. Crider, District Public Defender, Trenton, Tennessee, for the appellant, Rodney Welch.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Garry G. Brown, District Attorney General; and William Bowen, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       On April 10, 2001, the defendant pled guilty to possession of .5 grams or more of cocaine
with the intent to sell or deliver, a Class B felony. The trial court sentenced him as a Range I
standard offender to an effective sentence of eight (8) years, with six (6) months to be served in
confinement and the balance to be served in the Community Corrections Program. On August 3,
2003, a community corrections violation petition was filed seeking the defendant’s arrest and
requesting a revocation hearing. The petition alleged that the defendant violated the terms and
conditions of his Behavioral Contract Agreement by: (1) failing to remain at home; (2) failing to
remain employed; (3) failing to pay the scheduled court costs and supervision fees; (4) failing to
report to numerous scheduled meetings with the supervising corrections officer; (5) failing to
perform the minimum hours of community service; (6) incurring additional financial obligations by
purchasing a car without approval of the supervising community corrections officer; (7) failing to
notify his supervisor after changing his residence on several occasions; (8) failing to report his arrests
for aggravated assault and domestic assault; and (9) testing positive for cocaine on January 13, 2004.

       Following the hearing, the trial court revoked the defendant’s community corrections
sentence and re-sentenced the defendant to eleven (11) years in the Tennessee Department of
Correction. The trial court stated the following to the defendant:

        The Court finds that the State has sustained its petition and has shown that you have
        violated the terms of your sentence to Corrections Management Corporation in
        failing to meet appointments, failing to do community service, failing to pay costs,
        failure to be where you’re supposed to be and stay home, and failure on the cocaine
        testing. The Court finds that all of these violations justify your sentence being
        revoked. The Court finds that based upon the Pre-Sentence Report that was filed in
        this case that you have at least two prior felony convictions indicating a prior history
        of criminal conviction or criminal behavior in addition to those necessary to establish
        the appropriate range and an unwillingness to comply with the sentence involving
        release in the community.

                                              ANALYSIS

      On appeal, the defendant contends that the trial court abused its discretion in revoking his
community corrections sentence and re-sentencing him to a more severe sentence than originally
imposed.

         We initially note that if a defendant violates the terms of his community corrections sentence,
the trial court may revoke the sentence and impose a new one. Tenn. Code Ann. § 40-36-106(e)(4).
Additionally, if a trial court revokes a community corrections sentence, the court has the authority
to re-sentence a defendant to a period of incarceration up to the maximum sentence for the offense
originally committed, as long as the defendant is given credit for time already served in any
Community Corrections Program. Id. The trial court may impose a sentence greater than the
original sentence without offending the double jeopardy provision of either the Tennessee
Constitution or the United States Constitution. State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn.
1990).

        However, when a trial court re-sentences the defendant to a sentence greater than the one
originally imposed, the trial court must conduct a sentencing hearing pursuant to the Criminal
Sentencing Reform Act of 1989. See Tenn. Code Ann. § 40-35-209(a); State v. Ervin, 939 S.W.2d
581, 583-84 (Tenn. Crim. App. 1996). Because the Sentencing Reform Act provides that the record


                                                   -2-
of a sentencing hearing “shall include specific findings of fact upon which application of the
sentencing principles was based,” it is mandatory for the trial court to state on the record the reasons
for imposing a new sentence. Tenn. Code Ann. § 40-35-209(c) & -210(a)-(g); State v. Gauldin, 737
S.W.2d 795, 798 (Tenn. Crim. App. 1987).

        Our supreme court has previously held that revocation of a community corrections sentence
occurs upon a finding by a preponderance of the evidence that the defendant has violated the
conditions of the sentence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Moreover, appellate
review of a revoked sentence is subject to an abuse of discretion standard of review. Id.; Ervin, 939
S.W.2d at 583. If the trial judge has exercised “conscientious judgment in making the decision
rather than acting arbitrarily,” then there is no abuse of discretion. State v. Leach, 914 S.W.2d 104,
107 (Tenn. Crim. App. 1995) (citations omitted). Discretion is abused only if the record contains
no substantial evidence to support the trial court’s conclusion that a violation of a community
corrections sentence has occurred. Harkins, 811 S.W.2d at 82; State v. Gregory, 946 S.W.2d 829,
832 (Tenn. Crim. App. 1997).

         As a Range I offender convicted of a class B felony, the defendant was subject to a sentence
ranging from eight (8) to twelve (12) years. Tenn. Code Ann. § 40-35-112(a)(12) (2003). Pursuant
to Tennessee Code Annotated section 40-35-210(c), the presumptive sentence for a Class B felony
is the minimum in the range if no enhancement or mitigating factors are present. Procedurally, the
trial court starts with the minimum sentence, increasing the sentence within the range as appropriate
based upon the existence of enhancement factors, and then, reducing the sentence within the range
as appropriate based upon the existence of mitigating factors. Tenn. Code Ann. § 40-35-210(d)-(e).
The weight to be afforded an existing factor is left to the trial court’s discretion so long as it complies
with the principles of the 1989 Sentencing Reform Act, and its findings are adequately supported
by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Cmts. In addition, the trial
court’s imposition of an enhanced sentence must be evaluated in light of the recent decision of
Blakely v. Washington, 542 U.S. ----, 124 S.Ct. 2531 (2004). In Blakely, the United States Supreme
Court held that the maximum sentence a judge may impose is one based solely on the facts reflected
in a jury verdict or admitted by the defendant. Id. at 2537.

        At the hearing, the proof showed that the defendant violated the terms and conditions of his
community corrections sentence as alleged in the petition. The record reflects that the State offered
substantial evidence of numerous violations alleged in the petition via the testimony of the
defendant’s community corrections supervisor and two law enforcement officers.1 In challenging
the testimony of the State, the defendant and his wife testified that the evidence establishing the
violations was either not correct, or that the violations were justified. Here, the trial court heard the
testimony of all the witnesses, weighed credibility, and resolved any conflicts in the evidence. As
previously stated, the judgment of a trial court will not be disturbed on appeal unless it appears from



         1
            The transcript of the revocation hearing indicates that four additional police officers were prepared to testify
that the defendant was seen on several occasions at places not authorized by the community service agreement.

                                                            -3-
the record that there has been an abuse of discretion. Therefore, we conclude that the trial court did
not abuse its discretion in revoking the defendant’s community corrections sentence.

         Regarding the trial court’s imposition of the greater sentence, we conclude that the defendant
is not entitled to relief because the increase of the defendant’s presumptive sentence was based on
the existence of prior criminal convictions, which does not violate Blakely. See Blakely, 124 S.Ct.
at 2536; See also Apprendi v. New Jersey, 566 U.S. 466, 490 (2000). At the revocation hearing, the
trial court gave considerable weight to the defendant’s prior criminal history when re-sentencing him
to eleven (11) years in the Tennessee Department of Correction. The trial court stated it was
increasing the defendant’s sentence based upon the presentence report, which indicated that the
defendant had a prior criminal history including “at least two prior felony convictions.”

          Because the presentence report was not made a part of the record on appeal, we are unable
to determine if the defendant does in fact have at least two prior felony convictions. We note that
it is the defendant’s duty to prepare such a record and transcript necessary to convey a fair, accurate
and complete account of what transpired relative to the issue on appeal. Tenn. R. App. P. 24(b).
When the appellate record is inadequate, the appellate court is precluded from considering the issue,
and the trial court’s ruling is presumed correct. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.
App. 1991); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). From the transcript
of the sentencing hearing, it appears that the trial court considered and relied upon the presentence
report in finding that the defendant had at least two prior felony convictions. Consequently, we
conclude that the trial court’s factual findings in the present case are correct, and therefore do not
violate the rule of Blakely.

                                          CONCLUSION

       Accordingly, the judgment of the trial court is affirmed.




                                               ___________________________________
                                               J.C. McLIN, JUDGE




                                                 -4-
