         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 3, 2007

              STATE OF TENNESSEE v. WILLIE PAUL WATSON

                    Direct Appeal from the Circuit Court for Dyer County
                             No. C05-126     Lee Moore, Judge



                   No. W2007-00209-CCA-R3-CD - Filed November 1, 2007


The appellant, Willie Paul Watson, was convicted by a jury in the Dyer County Circuit Court of two
counts of assault, and he received a total effective sentence of eleven months and twenty-nine days,
suspended after service of ninety days. On appeal, the appellant argues that the trial court should not
have required him to serve ninety days of his sentence. Upon our review of the record and the
parties’ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E.
GLENN , JJ., joined.

James E. Lanier (on appeal) and Patrick McGill (at trial and on appeal), Dyersburg, Tennessee, for
the appellant, Willie Paul Watson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; C.
Phillip Bivens, District Attorney General; and Lance Webb, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        The appellant was originally charged with the aggravated assault of Geraldine Maupin and
the assault of Cheryl Dildine; however, following trial, the appellant was convicted of two counts
of assault, a Class A misdemeanor. Although the trial transcript was not included in the appellate
record, at the sentencing hearing the trial court stated that during the assault Maupin was hit with a
bottle of beer. The State recounted that

               Ms. Dildine, a lady about half his size was assaulted on the throat and
               chest[] area. . . . Both of these ladies were beaten to the point that
               they lost consciousness. Ms. Maupin had glass imbedded in her head
               and in her arm, and to this day, if you will remember, she still has
               scars that relate[] to this incident. . . . He smashed a bottle across one
               victim’s head, totally to unconsciousness. He stomped on the other
               lady’s chest and throat until she was unconscious, so I say he was
               pretty luck[y] and so [were] they. Both of them could have died as a
               result of this.

        At the sentencing hearing, Maupin testified that as a result of the assault she continues to
have problems with her voice. She said that although she was outgoing prior to the assault, she has
become less sociable. Maupin also said that her mother, Dildine, has become “very, very hermit like
now” and is very reluctant to leave her house. Maupin explained that Dildine “shakes and her nerves
are pretty shot. That’s why she is very anti-social.” Maupin asserted that she believed the appellant
should get the “full penalty” for his crimes and that she believed the appellant needed emotional,
social, and drug counseling. Maupin said that she had met the appellant a few times over the years,
and he had never behaved like he did during the assault. Maupin stated that insurance covered all
of the expenses relating to the assault except an ambulance bill for $578.

       The State presented proof of the appellant’s prior convictions: possession of cocaine,
possession of marijuana, and contributing to the delinquency of a minor.

        The appellant made an allocution at the sentencing hearing, saying that he was sorry about
the “accident” and about “losing my temper like I did.” The appellant also said that he was willing
to pay Maupin’s ambulance bill. The appellant maintained that the drugs involved in his previous
conviction were not his; he had merely bought them for “this other girl.” The court asked the
appellant, “Are you telling me that none of the prior charges are you actually guilty?” The appellant
responded, “No.”

       The appellant stated that he does not drink or go to clubs because he is being treated for
diabetes. He said that his wife left their son with the appellant when the son was a year and a half
old. The appellant maintained that he was the sole support of the household and that if he was not
working then he was home with his son.

         At the conclusion of the sentencing hearing, the court found that two enhancement factors
applied to the appellant. First, the court found that the appellant had a history of prior criminal
convictions. Second, the court found that the offenses were committed under circumstances where
the risk for bodily injury was great. The court noted that the appellant “take[s] the same position on
all [his] charges,” namely he denies guilt. The court stated that the appellant does not

               accept responsibility for anything. Your defense in this case as I
               recall was self defense, and Mr. Watson, this [is] not a case of self
               defense. This was a case for some reason, we may not know the
               particular reason, you totally lost your temper and you popped this


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               girl – one lady with a bottle and did hit Ms. Dildine in the neck or on
               the chest with your feet.

The court found that alternative sentencing was not appropriate, largely because the appellant was
not willing to accept responsibility for his actions. The court said, “Rehabilitation does not appear
to [be] something that you will be particularly successful with.”

         For the assault of Maupin, the trial court sentenced the appellant to eleven months and
twenty-nine days, with the sentence suspended after service of ninety days. For the assault of
Dildine, the trial court sentenced the appellant to six months, with the sentence suspended after
service of sixty days. The trial court further ordered that the sentences be served concurrently for
a total effective sentence of eleven months and twenty-nine days, suspended after ninety days.

        On appeal, the appellant “contends that he was arbitrarily sentenced to an effective ninety
days and that the sentence was excessive under the circumstances.” The appellant claims that the
court failed to consider that he had apologized for the offenses and that he was a single parent who
was the “sole provider for his son.” The appellant argues that “the court should have fashioned a
remedy that would allow the [appellant] to maintain a job and care for his son.”

                                            II. Analysis

        Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2006). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is
on the appellant to demonstrate the impropriety of his sentence(s). See Tenn. Code Ann. § 40-35-
401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169. However, in sentencing on misdemeanor convictions, the “trial court need only consider the
principles of sentencing and enhancement and mitigating factors in order to comply with the
legislative mandates of the misdemeanor sentencing statute.” State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998).

       Assault, as charged in the instant case, is a Class A misdemeanor. Tenn. Code Ann. § 39-13-
101(a)(3) and (b) (2006). Generally, a misdemeanant is not entitled to a presumptive minimum
sentence. See State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). An individual
convicted of a Class A misdemeanor may receive a statutory maximum sentence of eleven months
and twenty-nine days. See Tenn. Code Ann. § 40-35-111(e)(1) (2006). The appellant does not argue


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that the length of the sentences were improper. Instead, the appellant argues that his “ninety day
sentence” was arbitrary and unfair; in other words, the appellant essentially contends that he should
have received full probation.

        The trial court has the authority to place a misdemeanant on probation either after service of
a portion of the sentence in confinement or immediately after sentencing. Tenn. Code Ann. § 40-35-
302(e)(1)(2) (2006). However, we note that, while certain Class C, D, or E offenders are entitled
to a presumption in favor of probation, an offender is entitled to no such presumption regarding
misdemeanor sentences. See State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). Our
supreme court has observed that “[i]n addition to the statutory considerations for issuing sentences
of confinement, the misdemeanor sentencing statute merely requires a trial judge to consider
enhancement and mitigating factors when calculating the percentage of a misdemeanor sentence to
be served in confinement.” Troutman, 979 S.W.2d at 274.

        In the instant case, the trial court imposed a sentence of split confinement, which is an
alternative sentence. See Tenn. Code Ann. § 40-35-306(a) (2006); State v. Williams, 52 S.W.3d
109, 120 (Tenn. Crim. App. 2001). However, “[t]he determination of whether the appellant is
entitled to an alternative sentence and whether the appellant is entitled to full probation are different
inquiries.” State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Therefore, an appellant
seeking full probation bears the burden of establishing his suitability for full probation, regardless
of whether he is entitled to the statutory presumption favoring alternative sentencing. Id.; see also
Tenn. Code Ann. § 40-35-303(b) (2006). To prove his suitability, the appellant must establish that
granting full probation will “‘subserve the ends of justice and the best interest of both the public and
the [appellant].’” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Moreover,

                [i]n determining one’s suitability for full probation, the court may
                consider the circumstances of the offense, the [appellant’s] potential
                or lack of potential for rehabilitation, whether full probation will
                unduly depreciate the seriousness of the offense, and whether a
                sentence other than full probation would provide an effective
                deterrent to others likely to commit similar crimes.

Boggs, 932 S.W.2d at 477.

       Initially, we note that although the appellant contends on appeal “that he was arbitrarily
sentenced to an effective ninety days and that the sentence was excessive under the circumstances,”
the appellant failed to include the trial transcript with the appellate record. This court has previously
explained that

                a party complaining about a sentence has the burden of establishing
                that the trial court imposed an improper one. In this respect, failure
                to include a transcript of the trial makes it impossible for us to


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                conduct an appropriate de novo consideration of the case or to
                determine whether the trial court erred relative to its determinations
                which were based in any part on that evidence.

State v. Hayes, 894 S.W.2d 298, 300 (Tenn. Crim. App. 1994). Regardless, we are able, based upon
the limited record before us, to address the appellant’s concern.

        In the instant case, the appellant contends on appeal that the trial court failed to consider that
he had apologized for the offenses and that he was a single parent who was the “sole provider for
his son.” The appellant maintains that “the court should have fashioned a remedy that would allow
the [appellant] to maintain a job and care for his son.” All of the foregoing arguments were made
at the sentencing hearing. However, the trial court found that the appellant did not accept guilt for
his crimes, essentially disbelieving the appellant’s claim of remorse. Moreover, the court noted that
the appellant’s version of events was incredulous. Failure to accept responsibility is a germane
consideration for determining rehabilitative potential. State v. Zeolia, 928 S.W.2d 457, 463 (Tenn.
Crim. App. 1996). The court determined rehabilitation would likely be unsuccessful, which is a
valid concern in determining whether full probation is appropriate. Based upon the record before
us, we conclude that the trial court did not err in refusing to grant full probation.

                                           III. Conclusion

        Finding no error, we affirm the judgments of the trial court.


                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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