           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                 Assigned on Briefs August 5, 2003

                         STATE OF TENNESSEE v. EDRIAN RICE

                     Direct Appeal from the Circuit Court for Madison County
                              No. 02-206    Donald H. Allen, Judge



                     No. W2002-02677-CCA-R3-CD - Filed September 18, 2003


The Defendant, Edrian Rice,1 pled guilty to possession of cocaine with intent to sell, possession of
marijuana with the intent to sell, the unlawful carrying of a weapon with the intent to go armed,
possession of drug paraphernalia, and driving under the influence, first offense. The trial court
ordered the Defendant to serve an effective sentence of ten years in confinement as a Range I
standard offender. On appeal, the Defendant contends (1) his sentence is excessive; and (2) the trial
court erred in denying alternative sentencing. We affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
NORMA MCGEE OGLE , JJ., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Edrian Rice.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; James G. Woodall, District Attorney General; and Angela R. Scott,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                   OPINION

        The Defendant’s guilty pleas resulted from a single incident which occurred on November
11, 2001. The trial court sentenced the Defendant to ten years for the cocaine conviction, two years
for the marijuana conviction, thirty days for the weapons conviction, and eleven months and twenty-
nine days for each of the convictions for possession of drug paraphernalia and DUI, to run concurrently
for an effective sentence of ten years. The trial court further denied alternative sentencing.




       1
           In some pleadings, the Defendant’s name appears as “Edrain” Rice.
                                             I. WAIVER

         The facts and circumstances of the offenses were important to the trial court’s sentencing
determinations; however, the transcript of the guilty plea proceeding is absent from the record. Since
we deem the guilty plea proceeding essential to the determination of the issues presented, we must
presume the trial court’s decision is correct. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App.
1999); see also State v. Coolidge, 915 S.W.2d 820, 826-27 (Tenn. Crim. App. 1995) (specifically
stating that the absence of a portion of the record relating to sentencing requires the court to presume
the sentence was correct). By failing to produce an adequate record, the Defendant has waived any
claim that the conclusions of the trial court are incorrect. See State v. Ivy, 868 S.W.2d 724, 728
(Tenn. Crim. App. 1993).

        In the case at bar, the trial court specifically stated it was considering the evidence presented
during the Defendant’s guilty plea hearing in making its sentencing determinations. Therefore, the
Defendant has clearly waived the issues he has raised on appeal. However, despite this waiver, the
record before this court supports the sentences imposed by the trial court.

                                  II. STANDARD OF REVIEW

       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
Sentencing Commission Comments to this section of the statute indicate the Defendant bears the
burden of establishing the sentence is improper. When the trial court follows the statutory
sentencing procedure and gives due consideration and proper weight to the factors and principles
relevant to sentencing, this court may not disturb the sentence. State v. Hooper, 29 S.W.3d 1, 5
(Tenn. 2000).

                              III. LENGTH OF THE SENTENCES

         The trial court applied two enhancement factors to all of the Defendant’s sentences:
enhancement factor (2), “[t]he defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range”; and enhancement factor
(9), “[t]he defendant has a previous history of unwillingness to comply with the conditions of a
sentence involving release into the community.” See Tenn. Code Ann. § 40-35-114(2), (9) (Supp.
2002). The trial court also applied enhancement factor (10), “[t]he defendant possessed or employed
a firearm, explosive device or other deadly weapon during the commission of the offense,” to the
Defendant’s sentences for the cocaine offense, the marijuana offense, the drug paraphernalia offense,
and the DUI offense. See id. § 40-35-114(10) (Supp. 2002). Finally, the trial court applied
mitigating factor (13), “[a]ny other factor consistent with the purposes of this chapter,” based on the
Defendant’s stable employment history, his history of psychiatric and physical health problems, and
his willingness to accept responsibility for his actions. See id. § 40-35-113(13) (1997).




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        The Defendant contends the trial court wrongfully applied enhancement factor (10), the
possession of a firearm during the commission of the offense, because the record is devoid of
evidence supporting this factor. See id. § 40-35-114(10) (Supp. 2002). The presentence report,
which was admitted into evidence during the sentencing hearing, contained an official version of the
facts taken from the affidavit of complaint by one of the arresting officers. According to the official
version of the facts, the officers found a loaded .32 caliber Berretta handgun when the Defendant was
arrested. Moreover, the Defendant pled guilty to the offense of the unlawful carrying of a weapon
with the intent to go armed. This evidence is sufficient to support the trial court’s application of
enhancement factor (10) to all offenses except the weapons offense.

        The Defendant also maintains the trial court failed to properly weigh the enhancing and
mitigating factors. The weight given to each enhancement or mitigating factor is in the discretion
of the trial court, assuming the trial court has complied with the purposes and principles of the
sentencing act and its findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138
(Tenn. Crim. App. 2002). The statutes prescribe no particular weight for an enhancement or
mitigating factor. State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001). A defendant’s
sentence “is not determined by the mathematical process of adding the sum total of enhancing factors
present then subtracting from this figure the mitigating factors present for a net number of years.”
State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting State v. Boggs, 932 S.W.2d
467, 475 (Tenn. Crim. App. 1996)).

        In imposing an effective ten-year sentence, the trial court stated it placed great weight on
enhancement factor (2), previous history of criminal convictions, and enhancement factor (9),
“previous history of unwillingness to comply with the conditions of a sentence involving release into
the community.” See Tenn. Code Ann. § 40-35-114(2), (9) (Supp. 2002). The presentence report
reflects that the Defendant had nine prior misdemeanor convictions for various traffic offenses,
reckless driving, and simple possession of marijuana. The trial court also noted that the Defendant
had been placed on probation on several previous occasions and violated probation by committing
new offenses. Based on these circumstances, we conclude the trial court did not abuse its discretion
in placing great weight on enhancement factors (2) and (9) and in imposing an effective ten-year
sentence.

                              IV. ALTERNATIVE SENTENCING

       The Defendant contends the trial court erred in failing to impose some form of alternative
sentencing. We disagree.

                                           A. Standards

       An especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). However, this presumption is not available to a
defendant who commits the most severe offenses, has a criminal history showing clear disregard for


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the laws and morals of society, and has failed past efforts at rehabilitation. Id. § 40-35-102(5); State
v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001). The court should also examine a defendant’s potential
for rehabilitation or lack thereof when considering whether alternative sentencing is appropriate.
Tenn. Code Ann. § 40-35-103(5).

       Under the 1989 Sentencing Act, sentences which involve confinement are to be based on the
following considerations contained in Tennessee Code Annotated section 40-35-103(1):

        (A) [c]onfinement is necessary to protect society by restraining a defendant who has
        a long history of criminal conduct;

       (B) [c]onfinement is necessary to avoid depreciating the seriousness of the offense
       or confinement is particularly suited to provide an effective deterrence to others
       likely to commit similar offenses; or

       (C) [m]easures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant.

State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps, 920 S.W.2d 267,
270 (Tenn. Crim. App. 1995).

                                             B. Analysis

       The Defendant pled guilty to possession of cocaine with the intent to sell or deliver, a Class
B felony, and received an effective ten-year sentence. See Tenn. Code Ann. § 39-17-417(c)(1).
Therefore, the Defendant is not presumed to be a favorable candidate for alternative sentencing. See
Tenn. Code Ann. § 40-35-102(6).

        The trial court properly found the Defendant had an extensive history of criminal conduct.
Tenn. Code Ann. § 40-35-103(1)(A); State v. Davis Oliver Brown, No. 03C01-9608-CR-00313,
1997 Tenn. Crim. App. LEXIS 1274, at *7 (Tenn. Crim. App. Dec. 16, 1997) (noting misdemeanors
may be considered under this factor), perm. to app. denied (Tenn. 1998). Furthermore, the trial court
properly noted that the Defendant had violated his probation on several occasions; thus, measures
less restrictive than confinement were unsuccessful in preventing further criminal conduct. Tenn.
Code Ann. § 40-35-103(1)(C).

       Regardless, we further conclude the Defendant is ineligible for both probation and
community corrections. He is ineligible for probation because his ten-year sentence exceeds the
eight-year cap. Tenn. Code Ann. § 40-35-303(a) (Supp. 2002). Further, he is generally ineligible
for community corrections because the felony drug offenses involved “possession of a weapon,” see
Tenn. Code Ann. § 40-36-106(a)(4) (Supp. 2002), and he is also ineligible under the “special needs”
provision of community corrections because of the length of his sentence, see Tenn. Code Ann. §
40-36-106(c); State v. Cowan, 40 S.W.3d 85, 86 (Tenn. Crim. App. 2000) (holding a defendant must


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be statutorily eligible for probation in order to qualify under the “special needs” provision of
community corrections).

       Accordingly, we affirm the judgments of the trial court.




                                                     ____________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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