        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON                FILED
                         DECEMBE R SESSION, 1998          March 19, 1999

                                                        Cecil Crowson, Jr.
                                                        Appe llate Court C lerk

STATE OF TENNESSEE,               )   C.C.A. NO. 02C01-9809-CC-00272
                                  )
           Appellee,              )
                                  )   HENDERSON COU NTY
V.                                )
                                  )
                                  )   HON . FRA NKL IN MU RCH ISON ,
ANT HON Y HO LT,                  )   JUDGE
                                  )
           Appe llant.            )   (VOLU NTAR Y MA NSLA UGH TER)




FOR THE APPELLANT:                    FOR THE APPELLEE:

CARTHEL L. SMITH, JR.                 JOHN KNOX WALKUP
85 East Church Street                 Attorney General & Reporter
Lexington, TN 38351
                                      DOUGLAS D. HIMES
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      JAMES G. WOODALL
                                      District Attorn ey Ge neral

                                      BILL R . MAR TIN
                                      Assistant District Attorney General
                                      Village Square, Suite M
                                      777 West Church Street
                                      Lexington, TN 38351




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

      The Defend ant, An thony Holt, ap peals as of rig ht follow ing his sente ncing

hearing in the C ircuit C ourt of H ende rson C ounty . Defe ndan t was in dicted on a

charge of committing second degree murder on July 10, 1996, but he eventually pled

guilty to a reduced charge of voluntary manslaughter.             Pursuant to the plea

agreem ent, the trial court was to determine both the length and manner of service

of the sentence at the sen tencing h earing. T he trial cou rt ordered Defen dant to

serve a sentence of 4.5 years in the Tennessee Department of Correction, denying

any form of alternative sentence. The Defendant’s sole issue on appeal is the denial

of alternativ e sente ncing. W e affirm the judgm ent of the tria l court.




      When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (Te nn. 199 1).




      In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of senten cing and argum ents as to sentencing alternatives;

(d) the nature and characteristics of the criminal condu ct involved; (e) any s tatutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

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own behalf; and (g) the potential or lack of potential for rehabilitation or treatme nt.

Tenn. Code Ann. § 4 0-35-10 2, -103 a nd -210 ; see State v. S mith, 735 S.W.2d 859,

863 (Tenn . Crim. App. 19 87).




      If our rev iew re flects th at the tria l court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and the

proper weight to the factors and prin ciples se t out unde r the sen tencing la w, and

made findings of fact adeq uately su pported by the rec ord, then we m ay not m odify

the sentence even if we would have preferred a different result. State v. Fletcher,

805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).




      A defen dant w ho “is a n esp ecially mitigated or standard offender convicted of

a Class C, D or E felony is presumed to be a favorable candidate for alternative

sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann.

§ 40-35-102 (6). Our sentencing law also provides that “convicted felons committing

the most se vere offenses , possessing criminal histories evinc ing a clear disrega rd

for the laws and morals of society, and evincing failure of past efforts at

rehabilitation, shall   be   given   first priority   regarding   sentences   involving

incarcer ation.” Tenn. C ode An n. § 40-3 5-102(5 ). Thus, a d efenda nt senten ced to

eight (8) years or less who is not an offender for whom incarcera tion is a priority is

presumed eligible for altern ative s enten cing u nless sufficie nt evid ence rebuts the

presumption. Howe ver, the ac t does no t provide th at all offenders who meet the

criteria are entitled to such relief; rather, it requires that sentencing issues be




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determined by the fac ts and circ umsta nces p resente d in each case. See State v.

Taylor, 744 S.W .2d 919, 922 (Tenn. Crim . App. 1987 ).




      Additionally, the principles of sentencing reflect that the sentence should be

no greater than tha t deserved for the offense committed and should be the least

severe meas ure nec essary to achiev e the pu rposes for which the sente nce is

imposed. Tenn. Code Ann. § 40-3 5-103(3) an d (4). The cou rt also should consider

the potential for rehabilitation or treatment of the defendant in determining the

senten ce alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).




      Defendant does not contest the length of the sentence, on ly that the trial court

denied alternative sentencing. The trial court held that alternative sentencing was

inappropriate in this case, reasoning as follows:

      This man [victim], as I said to repeat, was very brutally killed, and the
      Defen dants escaped a charge of second degree murder. When I say
      escaped, I say they are not guilty. They are not going to trial on second
      degree murde r. It’s unfortunate that [the victim] behaved the way he
      did, and it’s equally unfortunate and sad that the Defendants responded
      the way they did, with extreme violence. As I said, alternative
      sentencing is not appropriate, and I rely upon and follow Section 40-35-
      103.

      Confinement is necessary to avoid depreciating the seriousness of the
      offense, for confinement is particularly suited to provide an effective
      deterrence to o thers likely to commit a similar offense. Here we have
      a man again who was killed, who is dead, who was a pathetic man, but
      he was a child of God as we all are and he was killed, and this has
      caused much grief to his family. And we have heard from the
      Defendants, or the Defendants’ family, we have not heard from the
      Defen dants themselves, that they are rem orseful ab out this thing . It is
      a sad thing, a tragic thing, for [the victim], his family and now the
      Defen dants’ fam ily.




                                          -4-
      At the sente ncing hearin g, the tria l court a ppare ntly relied upon the nature of

the circumstances of the offense to justify the denial of alternative sentencing and

to impose a sentence of total incarceration. For such a denial to occur, though, the

circumstances of the offense must be “especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and

the nature of the offense must outweigh all factors favoring a sentence other than

confinement.” State v. Bingham, 910 S.W .2d 448, 455 (Tenn. Crim . App. 1995 ).

This standard was essentially codified by section 40-35-103(1)(B) which provides for

confineme nt if “necessary to a void deprec iating the seriousn ess of the offens e.”




      When impos ing a sen tence o f total confinement, our Criminal Sentencing

Reform Act mandates the trial court to base its decision on th e considerations set

forth in Tennessee Code Annotated section 40-35-103. These considerations which

militate against alternative sentencing include: the need to prote ct society by

restraining a defendant with a long history of criminal conduct; whether confinement

is particularly approp riate to effectively deter others likely to commit a similar

offense; the ne ed to a void depreciating the seriousness of the offense, and the need

to order c onfine men t in cases in which less restrictive measures have often or

recently been unsuc cessfully a pplied to th e defen dant. Tenn. Code Ann. § 40-35-

103(1).




       In determining whether to grant probation, the judge mu st consider the n ature

and circumstances of the offense, the defendant’s criminal record, his background

and social history, his present condition, including his physical and mental condition,


                                           -5-
the deterrent effect on other criminal activity, a nd the likelihoo d that p robatio n is in

the best intere sts of both the pub lic and the defend ant. Stiller v. State , 516 S.W.2d

617, 620 (Tenn. 1974). T he burd en is on th e Defe ndant to show that the sentence

he received is improper and that he is entitled to probation. State v. Ashby, 823

S.W.2 d 166, 1 69 (Ten n. 1991 ).




       We note that the transcript from the guilty plea hearing was not included in the

record on appeal. From our review of the sentencing hearing transcript, the trial

court apparently relied upon p roof it had h eard du ring the gu ilty plea hea ring. It is

the duty of the party seeking appellate review to prepare a rec ord which conveys a

fair, accurate and complete account of what transpired with respect to the issues

forming the basis of the app eal. State v. Ballard, 855 S.W.2d 557,560 (Tenn. 1993)

(citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). When there is less than

an adequate record on ap peal, th is cour t mus t presu me th at the tria l court’s rulings

were suppo rted by su fficient evide nce. State v. Oody, 823 S.W.2d 554, 559 (Tenn.

Crim. A pp. 199 1) (citations omitted) .




       Based upon this presumption, this court concludes that the extremely violent

nature of the beating of the victim as noted by the trial court is a sufficient basis upon

which to deny alternative sentencing. The State met its burden in proving the

“espe cially violent, horrifying, shocking, reprehensible and offensive” circumstances

surrounding the victim’s death and the nature of Defendant’s offense outw eighs all

factors favoring a sentence other tha n confine ment. Bingham, 910 S.W.2d at 455.

While the existence of a death by itself cannot justify a sentence of total


                                            -6-
confinem ent, the circumstances surrounding Defendant’s actions were such that

justify his sente nce. Similar to a previous decision by a panel of this court regarding

the trial court’s denial of a completely suspended sentence, the Defendant in the

case sub judice violently beat a total stranger who was apparently intoxicated,

striking and kicking him repeate dly. See State v. Brandon Harrison, 02C01-9206-

CR-00138, Shelby Coun ty (Tenn . Crim. A pp., at Jackson, August 4, 1993) (No Rule

11 application filed). Particular ly in light of the fa ct that we do not ha ve the gu ilty

plea transcript by which to review the circumstances of the offense, we presume that

the trial cou rt aptly described the extremely violent and horrifying circumstances of

the bea ting whic h resulted in the victim ’s death.




       Moreov er, from a review of the Defendant’s presentence report, it is clear that

he has a history of misdemeanor offenses, including theft, bad check violations and

numerous traffic offenses. Despite past leniency and opportunities for rehabilitation,

the Defendant “has shown neither respect for the prior reprieves from incarceration,

nor efforts toward conforming his conduct to the dictates of the law. Having no

regard for measures less restrictive than confinement, the Defendant has through

his own a ctions rebutte d the p resum ption o f his favorable candidacy for alternative

senten cing.” State v. Randal Thies, No. 02C01-9708-CC-00299, slip op. at 9, Tipton

Coun ty (Tenn. Crim. App., at Jackson, April 24, 1998) (No Rule 11 ap plication filed).




       In addition to the circumstances of the offense justifying the denial of an

alternative sentence due to the seriousness of the Defendant’s offense, the trial

court noted a lack o f remorse by the Defend ant. Lack of remorse is sufficient


                                            -7-
evidence by whic h a trial cou rt may d eny an alternative sentence. Smith , 735

S.W.2d at 864. The presentence report does not include any statement on be half

of the Defendant. There is no justification provided by the Defendant to explain the

degree of force us ed.




                                        -8-
       There is not sufficient evidence whereby the sentence of total confinement

was not justified. A fter a thoro ugh rev iew, we affirm the ju dgme nt of the trial co urt.




                                   ____________________________________
                                   THOMAS T. WO ODALL, Judge




CONCUR:




___________________________________
GARY R. WADE , Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




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