        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned On Briefs March 29, 2011

                STATE OF TENNESSEE v. ALFRED GETTNER

                   Appeal from the Criminal Court for Sullivan County
                No. S52968, S54545, S56388, S56444 R. Jerry Beck, Judge



                   No. E2010-00104-CCA-R3-CD - Filed August 19, 2011


In 2007, 2008, and 2009 in Sullivan County, Appellant, Alfred Gettner, was charged by
presentment, indicted, and consented to prosecution by information for various counts
consisting of four counts of violating an habitual traffic offender order, one count of driving
under the influence (“DUI”), third offense, and one count of failing to yield to an emergency
vehicle. On May 1, 2009, Appellant entered a negotiated plea to four counts of violation of
a habitual traffic offender order, one count of DUI, first offense, and one count of failing to
yield to an emergency vehicle. The agreed to sentence was an effective sentence of six years.
Appellant requested an alternative sentence. The trial court held a hearing and denied
Appellant’s request. Appellant appealed to this Court and argued that the trial court erred
in denying his request for an alternative sentence. Because Appellant failed to include a copy
of the transcript from his guilty plea hearing, he has waived the presentation of his issue to
this Court. Therefore, we dismiss this appeal.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J.C. M CL IN, J., joined and
J AMES C URWOOD W ITT, J R., filed a concurring opinion.

Raymond C. Conkin, Jr. Kingsport, Tennessee, for the appellant, Alfred Gettner..

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant
Attorney General; Greeley Wells, District Attorney General, and Brandon H. Haren,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background
       In February 2007 in Sullivan County, Appellant was charged by presentment with one
count of violation of an habitual traffic offender order, one count of driving under the
influence of an intoxicant (“DUI”), and one count of DUI, third offense as a result of an
incident which occurred on October 21, 2006. Also, in February 2008, the Sullivan County
Grand Jury indicted Appellant for one count of violation of an habitual traffic offender order
and failure to drive within the lane based upon an incident which occurred on September 4,
2007. On May 1, 2009, Appellant waived his right to be charged by indictment or
presentment and consented to prosecution by information for violation of a habitual traffic
offender order and failing to yield to an emergency vehicle for incidents that occurred on
October 17, 2008; and for violation of a habitual traffic offender order for an incident that
occurred on December 31, 2008.

       On May 1, 2009, Appellant entered an Alford plea1 to four counts of violation of the
habitual motor vehicle offender act, one count of DUI first offense, and one count of failure
to yield to an emergency vehicle. As part of his negotiated plea, Appellant agreed to an
effective sentence of six years as a result of an eighteen-month sentence for each violation
of the habitual motor vehicle offender act to be served consecutively. On October 8, 2009
and December 22, 2009, the trial court held an alternative sentencing hearing. At the time
of the hearing, Appellant was ninety-two years old. At the beginning of the hearing on
October 8, 2009, the trial court stated the following:


               Now, the Court has been – had great concerns about the Defendant’s
        age. Quite frankly, in my 40 years of license to practice law. [sic] I’m aware
        of no one from Sullivan County that was 91 years of age that appeared before
        the Court for sentencing. And humanity tells you something. And I probably
        exercised maybe too much humanity in the past. And, because, you know, it’s
        – judges don’t like to put 91-year-old people in prison. But the Defendant has
        such a record . . . [.]

               We’ve done things like, one of his first conviction, required to put his
        car up on blocks, park it down the road, and ordered the sheriff’s department
        to make sure it was there on blocks. Then I found out he had another car when
        he got arrested. That didn’t work. I think he might have got away with that
        a few times on the blocked-up cars. What we’d do, we’d jack them up and
        take the wheels off, and try to give him minimal sentences. And he had to


        1
          This type of plea is named after North Carolina v. Alford, 400 U.S. 25 (1970), in which the United
States Supreme Court discussed the right of an accused to plead guilty in his best interest while professing
his actual innocence.

                                                    -2-
       serve some major times because he got to be a multiple offender at one time
       where he [served forty-five days]

              ....

              And we monitored him in jail very carefully because of his age.

              ....

               Then we’d get him out of jail and put him back on probation . . . .
       Mainly, quite frankly, due to his age. And he’s very agreeable long as he don’t
       [sic] run into anybody. That’s the big danger.


       The trial court and the lawyers discussed many different options to prevent Appellant
from serving his time in prison. These options included living with a relative, living in an
assisted living facility, and having his in-home caregiver drive him if he would agree to
surrender his car keys to the court. The trial court continued the hearing until December 10,
2009, for Appellant’s attorney to explore other options for Appellant.

        However, on December 10, 2009 when the hearing continued, the fact that Appellant
had received a new charge for violation of the habitual traffic offender act on November 25,
2009 between the dates of when the hearing was held and the continuation of the hearing.
The trial court denied Appellant’s request for alternative sentencing. The trial court stated
the following:


               For the review of the presentence report, the Defendant has continued
       activities driving automobiles when he can’t; driving while he’s drunk, can’t.
       Even though he’s 92 years old, I’m going to deny probation an alternative
       sentencing in all forms and kinds. Just have to serve your sentence,
       [Appellant].


       Appellant filed a timely notice of appeal.

                                        ANALYSIS

       Appellant argues that the trial court erred in denying his request for probation or
alternative sentencing by improperly weighing the enhancement and mitigating factors

                                             -3-
applied to Appellant’s sentence and that the requirement of incarceration of Appellant is
contrary to the sentencing principles set out in Tennessee Code Annotated section 40-25-103.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “[T]he 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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If . . . the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” Id. at 345 (citing State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992)). We are to also recognize that the defendant
bears “the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at
169.

      With regard to alternative sentencing, Tennessee Code Annotated section
40-35-102(5) provides as follows:


       In recognition that state prison capacities and the funds to build and maintain
       them are limited, convicted felons committing the most severe offenses,
       possessing criminal histories evincing a clear disregard for the laws and morals
       of society, and evincing failure of past efforts at rehabilitation shall be given
       first priority regarding sentencing involving incarceration . . . .


A defendant who does not fall within this class of offenders:


       [A]nd who is an especially mitigated offender or standard offender convicted
       of a Class C D or E felony, should be considered as a favorable candidate for
       alternative sentencing options in the absence of evidence to the contrary . . .
       . A court shall consider, but is not bound by, this advisory sentencing
       guideline.


T.C.A. § 40-35-102(6); see also Carter, 254 S.W.3d at 347. For offenses committed on or
after June 7, 2005, a defendant is eligible for probation if the sentence actually imposed is
ten years or less. See T.C.A. § 40-35-303(a) (2006).

                                              -4-
       All offenders who meet the criteria for alternative sentencing are not entitled to relief;
instead, sentencing issues must be determined by the facts and circumstances of each case.
See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate for alternative
sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court may deny
an alternative sentence because:


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

       (B) Confinement 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) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .


T.C.A. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial
court should also consider Tennessee Code Annotated section 40-35-103(5), which states,
in pertinent part, “[t]he potential or lack of potential for the rehabilitation or treatment of the
defendant should be considered in determining the sentence alternative or length of a term
to be imposed.” T.C.A. § 40-35-103(5); see also State v. Dowdy, 894 S.W.2d 301, 305
(Tenn. Crim. App. 1994). The trial court may consider a defendant’s untruthfulness and lack
of candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d
282, 289 (Tenn. Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn.
1983); State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson,
919 S.W.2d 69, 84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

         Initially, we note that the State argues that this issue is waived because Appellant has
failed to include a transcript from the guilty plea hearing. “[T]he appellant shall have
prepared a transcript of such part of the evidence or proceedings as is necessary to convey
a fair, accurate and complete account of what transpired with respect to those issues that are
the basis of appeal.” Tenn. R. App. P. 24(b). In addition, when a record is not complete and
does not contain relevant information, this Court must presume that the trial court was correct
in its ruling. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); State
v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987). With regard to the failure to
include a guilty plea hearing transcript, we have stated the following:



                                                -5-
       This Court has previously noted,

              For those defendants who plead guilty, the guilty plea hearing is
              the equivalent of trial, in that it allows the State the opportunity
              to present the facts underlying the offense. 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.

       State v. Keen, 996 S.W.2d 842, 843 (Tenn. Crim. App. 1999) (citation
       omitted). Accordingly, the appellant’s “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 [Tennessee Code Annotated section]
       40-35-210(b).”            State v. Shatha Litisser Jones, N o.
       W2002-02697-CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App., at
       Jackson, July 14, 2003).


State v. Chadwick Allen Johnson, No. 2005-02219-CCA-R3-CD, 2008 WL 1850808, at *4
(Tenn. Crim. App., at Knoxville, Apr. 25, 2008).

       We conclude that the absence of the guilty plea transcript precludes our ability to
review Appellant’s sentence. Therefore, this issue is waived. This was Appellant’s sole
issue on appeal, therefore, we must affirm the trial court’s denial of alternative sentencing.

                                      CONCLUSION

       For the foregoing reasons, we dismiss this appeal.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




                                              -6-
