        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
                 Nos. S52968, S56388, S56444 R. Jerry Beck, Judge




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




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in results because, respectfully, I disagree that we should per se
presume the correctness of the sentencing judgment based upon the absence of the plea
submission hearing transcript. I believe that the presentence report contained in the record
provides this court with an understanding of the nature and circumstances of the offenses
such that we can perform our mandated duty of conducting a de novo review upon the record.
On the other hand, I believe that the trial court’s judgment is supported in the record and
should be affirmed on that basis.

               To be sure, our standard of review of sentencing decisions is de novo “on the
record of the issues . . . 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).

              The starting place for probing whether the record is sufficient to facilitate de
novo review is Tennessee Code Annotate section 40-35-210(b), which enumerates the case
components that the trial court “shall” consider in “determin[ing] the specific sentence and
the appropriate combinations of sentencing alternatives.” The mandated list is as follows:

              (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 the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The list does not include specifically the evidence or statements
presented in the plea submission hearing. The statute does require, however, consideration
of “the nature and circumstances of the criminal conduct.” I agree that our courts have
determined that when a trial court approves a defendant’s “open” guilty plea and then
imposes a sentence that is challenged on appeal, the appellate court may need the transcript
of the plea submission hearing as a means of knowing the nature and circumstances of the
offense. See, e.g., State v. Farmer, 239 S.W.3d 752, 756 (Tenn. Crim. App. 2007). The need
for information about the nature and circumstances of the offense does not equate, in my
view, to a per se requirement that the plea submission hearing transcript be included in the
record as a condition precedent to appellate review.

               In State v. Keen, 996 S.W.2d 842 (Tenn. Crim. App. 1999), this court, in
reviewing the length and manner of service of the sentence following an open guilty plea,
stated that no transcript of the plea submission hearing appeared in the appellate record. Id.
at 844. The court said:

              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.

Id. at 843-44 (emphasis added) (citation omitted). Not only did the court refrain from
requiring the plea submission hearing transcript in every appeal, but also it noted that the
record before it was “quite bare” and that the “basic facts underlying the aggravated burglary

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[that] appear in the sentencing hearing transcript and the presentence report . . . are not
enough to properly review the sentence in this case,” especially when, based upon the
enhancement factors applied, “the trial court [had] relied substantially upon the nature of the
offense.” Id. at 844. Thus, only after considering the paucity of the rest of the appellate
record did the court, in reviewing the length of Keen’s sentence, point to the absence of the
pleas submission hearing transcript and the indictment “to presume that had all of the
evidence considered by the trial court been included in the record on appeal, it would have
supported the imposition of a six year sentence.” Id. (citing State v. Oody, 823 S.W.2d 554,
559 (Tenn. Crim. App. 1991)).

                Even then, “despite the incomplete record,” the court deemed “the record on
appeal . . . sufficient to determine that the trial court did not err in sentencing the defendant
to prison rather than community corrections.” Id. Specifically, the Keen court said:

               A felon’s rehabilitation potential and the risk of repeating
               criminal conduct are fundamental in determining whether he or
               she is suited for alternative sentencing.            Here, the
               thirty-five-year-old defendant has been previously convicted of
               seven felonies and several misdemeanors. Twice he has
               violated imposed terms of probation, and when he committed
               the offense in this case, he had been released from jail on an
               unrelated charge for only three days. Even though the defendant
               argues otherwise, these facts show a poor potential for
               rehabilitation, which is sufficient reason to justify a term of
               incarceration rather than alternative sentencing.

Id. at 844-45. Thus, the court, despite the lacunae in the record, not only reviewed the
manner of service of the sentence, it also affirmed the trial court’s manner-of-service
judgment on the facts. See id. at 845.

               In Farmer, despite noting that ‘‘[w]ithout the guilty plea hearing, [the appellate
court did] not have at [its] disposal all of the facts considered by the trial court,” Farmer, 239
S.W.3d at 756, the court determined that “the limited record before [it] supports the trial
court’s denial of alternative sentencing,” id., which was based upon Farmer’s extensive
criminal record, id.; see State v. Robinson, 139 S.W.3d 661, 664-65 (Tenn. Crim. App. 2004)
(“conclud[ing that] the trial court properly denied judicial diversion” despite the absence of
the plea submission hearing transcript, a failing that would “usually” preclude the appellate
court from knowing “the facts and circumstances surrounding the offense” and conducting
its review). As in Keen, the court not only reviewed the trial court’s denial of alternative
sentencing despite the absence of the plea submission transcript, it also affirmed the denial

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based upon its finding that Farmer’s “continued criminal behavior clearly demonstrates a lack
of rehabilitative potential.” Id.; see Keen, 996 S.W.2d 845 (“[T]hese facts show a poor
potential for rehabilitation, which is sufficient reason to justify a term of incarceration rather
than alternative sentencing.”); see also State v. Shatha Litisser Jones, No. W2002-02697-
CCA-R3-CD, slip op. at ___ (Tenn. Crim. App., Jackson, July 14, 2003) (stating, after
commenting that the absence of the guilty plea hearing transcript compromises the appellate
court’s ability to discharge its duty of de novo review of a sentencing issue, that “[i]n any
event, the record before us supports the trial court’s determination relative to the defendant’s
criminal history and inability to comply with the requirements of a former probation”).

               Based upon these authorities, I conclude that this court is not precluded from
reviewing the manner-of-service decision in every case in which the plea submission hearing
transcript is absent from the appellate record and that the record in the present case affords
this court an adequate basis for reviewing the defendant’s sentence. His noncontroverted
record belies any potential for rehabilitation; the trial court clearly was justified in denying
alternative sentencing. See T.C.A. §40-35-103(1)(A), (authorizing sentences involving
confinement when “necessary to protect society by restraining a defendant who has a long
history of criminal conduct”), (C), (authorizing sentences involving confinement when
“[m]easures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant”),(5) (mandating the sentencing court’s consideration of the
defendant’s potential or lack of potential for rehabilitation in determining the aptness of
alternative sentencing). I would affirm the judgment on this basis.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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