         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2007

       STATE OF TENNESSEE v. SCOTT CHRISTOPHER MAGNESS

                   Direct Appeal from the Circuit Court for Hardin County
                             No. 8493    Julian P. Guinn, Judge



                    No. W2006-01608-CCA-R3-CD - Filed August 27, 2007


The defendant, Scott Christopher Magness, appeals as of right from the sentence of confinement
imposed by the Hardin County Circuit Court for his conviction of attempted aggravated sexual
battery, a Class C felony. As a Range I, standard offender, the defendant received a sentence of six
years in the Tennessee Department of Correction. On appeal, the defendant contends that the trial
court erred by denying alternative sentencing. We affirm 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 JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.

Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Scott Christopher Magness.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Robert “Gus” Radford, District Attorney General; and John W. Overton, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant was indicted on one count of aggravated sexual battery. Thereafter, the
defendant pled guilty to attempted aggravated sexual battery and received a six-year sentence. At
the sentencing hearing, the defendant’s presentence and mental evaluation reports were presented.
The presentence report reflected that the defendant had a few prior misdemeanor convictions
including drug possession, theft, indecent exposure, and traffic offenses. The presentence report also
contained statements from the nine-year-old victim and the victim’s mother. These statements
indicated that the defendant’s crime caused the victim to lose sleep, miss school, and seek
counseling. The female victim also could not get along with males, was afraid of being alone, and
could not wear a dress. The victim’s entire family suffered from emotional and mental stress and
missed several days of work. The defendant’s mental evaluation report was also introduced at the
hearing. However, the mental evaluation was not included in the record on appeal. The court also
asked the state about the underlying factual basis for the defendant’s plea. Without objection, the
state responded, “[o]ur proof would have been at trial that it was penile penetration.” The court then
made the following findings:

       This is a Class C Felony and as required by 40-35-102 there is the legal presumption
       that he is a favorable candidate for some alternative means of service. . . . [T]his
       court has had to consider a number of separate factors, in particular to get to the
       circumstances of this offense. This was not mere children playing around. This was
       an adult taking advantage of a young girl. I have considered, in particular, the effect
       [the crime] had upon the victim. There have been and are ongoing emotional
       problems that continue to this day and will more than likely continue on into
       adulthood.

                While that is not the sole determinate factor, that is certainly something that
       I do bring to the attention of the upper courts in ruling on this question[], because I
       think it is of significance.

               I have considered the criminal record of the defendant. It is admittedly not
       of a felony nature, but is of such a nature that it is something to be considered as a
       factor in [] ruling on this question.

               I have considered his social history. I did particularly considered [sic] this
       report that comes through from this PhD. William R. Sewell, which is undated, but
       essentially reveals the problem that he had in evaluating [the defendant] from the
       point of view of [the defendant’s] unwillingness to deal with him truthfully.

              [The defendant] can not even deal with himself truthfully and come to grips
       with the crime that he has committed.

               I am of the opinion that alternative means of service would not be in the best
       interest of justice and it would not be in the best interest of the public, and it certainly
       wouldn’t be in the best interest of this defendant.

               I have considered the deterrent effect. Lastly, I am of the strong opinion that
       confinement is necessary to avoid depreciating the seriousness of a crime with this
       particular factual situation.

               Alternative means of service is hereby denied.

        On appeal, the defendant argues that the trial court ignored the sentencing considerations set
forth in Tennessee Code Annotated section 40-35-103. Specifically, the defendant argues that the
court failed to properly consider his minimal criminal record, his mental evaluation, and the fact that
he pled guilty to the lesser-included offense of attempted aggravated sexual battery.


                                                   -2-
         When an accused challenges the length and manner of service of a sentence, this court
conducts a de novo review of the record with a presumption that the trial court’s determinations are
correct. Tenn. Code Ann. § 40-35-401(d). 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). However,
if the record shows that the trial court failed to consider the sentencing principles and all relevant
facts and circumstances, then review of the challenged sentence is purely de novo without the
presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). On appeal, the party
challenging the sentence imposed by the trial court has the burden of establishing that the sentence
is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

         In this case, the defendant was entitled to the presumption that he was a favorable candidate
for alternative sentencing because he was convicted of a Class C felony, his actual sentence was ten
years or less, and the offense for which he was sentenced was not specifically excluded by statute.
See Tenn. Code Ann. §§ 40-35-102(6) & -303(a). Pursuant to Tennessee Code Annotated section
40-35-103, a trial court is “encouraged to use alternatives to incarceration that include requirements
of reparation, victim compensation and/or community service.” However, a trial court may
determine incarceration rather than alternative sentencing is appropriate if the evidence shows that:

        (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[.]

Tenn. Code Ann. § 40-35-103(1)(A)-(C). As part of its determination, the trial court may also
consider the defendant’s potential or lack of potential for rehabilitation. Id. § 40-35-103(5). There
is no mathematical equation to be utilized in determining sentencing alternatives. Not only should
the sentence fit the offense, but it should fit the offender as well. Id. § 40-35-103(2); State v. Boggs,
932 S.W.2d 467, 476-77 (Tenn. Crim. App. 1996).

       In the instant case, the record reflects that the trial court relied substantially upon the
seriousness of the offense and the defendant’s lack of rehabilitation potential as reflected in the
mental evaluation when denying alternative sentencing. Initially, we note that the trial court is not
required to ignore actual proof of a more serious offense than the offense to which the defendant
entered a plea. See State v. Danny Horn, No. 01C01-9606-CC-00256, 1997 WL 722792, *2 (Tenn.
Crim. App., at Nashville, Nov. 20, 1997). More importantly, however, the appellate record does
not contain a transcript from the plea hearing or the mental evaluation report upon which the trial


                                                  -3-
court relied. It is well-settled that the defendant, as the appealing party, has the burden of preparing
a complete and accurate record relating to the issues on appeal. Tenn. R. App. P. 24(b). In the
absence of a full and complete record revealing the issues that form the bases for the appeal, we must
presume that the trial court was correct in its determination of confinement. State v. Ivy, 868 S.W.2d
724, 728 (Tenn. Crim. App. 1993); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991);
State v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988). Accordingly, the defendant is not
entitled to relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




                                                  -4-
