        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 24, 2010

                 STATE OF TENNESSEE v. JOSHUA LEE ARP

                Direct Appeal from the Circuit Court for Sevier County
                Nos. 14167-III, 14238-III      Rex Henry Ogle, Judge




               No. E2010-00371-CCA-R3-CD - Filed September 29, 2010


J OSEPH M. T IPTON, P.J., concurring.

        I concur in the results reached in the majority opinion. However, I would affirm the
trial court because of the defendant’s failure to include the trial transcript in the record and
the attendant presumption that the trial court’s determinations were correct. See State v.
Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling presumed
correct in the absence of an adequate record on appeal). The 1989 Sentencing Act, as
amended, requires a sentencing court to consider evidence received at the trial. T.C.A. § 40-
35-210(b)(1). Absent the trial transcript, it is impossible for us to do a de novo review of the
matters relevant to sentencing.


                                                   ____________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE
