         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    May 18, 2004 Session

   STATE OF TENNESSEE v. CARL E. MUNCEY, a/k/a BOO MUNCEY

                     Appeal from the Criminal Court for Sullivan County
                          No. S45,642    Phyllis H. Miller, Judge



                      No. E2003-02314-CCA-R3-CD - Filed July 2, 2004


A Sullivan County Criminal Court jury convicted the defendant, Carl E. Muncey, of possession of
cocaine, possession of marijuana, and possession of Alprazolam, Class A misdemeanors, and the
trial court sentenced him to eleven months, twenty-nine days for each conviction and fined him a
total of $2,500. The trial court ordered that the defendant serve his sentences for the possession of
cocaine and marijuana convictions consecutively and that all of the convictions be served
consecutively to Washington County sentences. The defendant appeals, claiming (1) that the trial
court improperly applied enhancement and mitigating factors; (2) that the trial court erred by
ordering consecutive sentencing; and (3) that the trial court erred by denying his request for
alternative sentences. We conclude that the trial court properly sentenced the defendant relative to
the lengths, manner of service, and consecutive nature of the offenses in this case. However, we
conclude that the trial court erred in ordering these sentences to be served consecutively to the
Washington County sentences, and we remand the case for modification of the judgments by deleting
any reference to the Washington County cases.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;
                           Reversed in Part; Case Remanded

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN , JJ., joined.

Richard A. Spivey and Timothy Reid Wilkerson, Kingsport, Tennessee, for the appellant, Carl E.
Muncey, a/k/a Boo Muncey.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Jack Lewis Combs, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

        This case relates to the defendant’s possessing marijuana, cocaine, and Alprazolam on
February 7, 2001. Little is known about the facts of this case because the trial transcript has not been
included in the appellate record. However, according to the facts in the presentence report, Detective
Sean Chambers of the Kingsport Police Department and another detective saw what appeared to be
a drug deal take place in the Red Lion Package Store parking lot. The detectives followed one of
the cars involved to 1408 Prospect Drive, where the driver parked the car illegally. As the driver,
who was the defendant, got out of the car, Detective Chambers approached him and identified
himself as a police officer. He then saw the defendant drop a plastic bag on the ground and kick the
bag underneath the car. Detective Chambers picked up the bag and saw that it contained four large
balls wrapped in aluminum foil and three plastic bags with white powder in them. The detectives
arrested the defendant, searched his person, and found a plastic bag containing marijuana in his front
pants pocket. While searching the defendant’s car, the detectives found a blue pill on the driver’s
side floorboard. They found another blue pill on the pavement where the defendant had kicked the
plastic bag. The defendant was charged with possession of one-half gram or more of cocaine with
intent to sell within one thousand feet of a school, a Class A felony; possession of one-half ounce
or more of marijuana with intent to sell within one thousand feet of a school, a Class D felony; and
possession of Alprazolam with intent to sell within one thousand feet of a school, a Class A
misdemeanor.

        On June 3, 2003, a jury convicted the defendant of misdemeanor possession of cocaine,
marijuana, and Alprazolam. No witnesses testified at his August 29, 2003 sentencing hearing.
According to the defendant’s presentence report, the then thirty-five-year-old defendant had never
been married and had no children. In the report, the defendant stated that he lived with his parents
most of the time but that he traveled around a lot and stayed in cities such as Atlanta and Richmond
for months at a time. The defendant reported that he graduated from high school and that he
attended Virginia Highlands Community College and National Business College but dropped out.
The defendant described his mental health as excellent and his physical health as fair and stated that
he had diabetes. He also stated that he began using marijuana when he was twenty-five years old,
that he used it once every two months, and that he had not used the drug in two years.

         The report reflects that the defendant stated that on February 7, 2001, he was living in Gate
City, Virginia, and came to Kingsport in order to see Angie Thombs. He said the two of them went
to the Red Lion where he saw Kevin Scales. He said that he had not seen Mr. Scales in a few years,
that Mr. Scales got into his car for about five to ten minutes, and that he and Ms. Thombs then drove
to his cousin’s house on Prospect Drive. He said that after he stopped the car and got out, a police
officer approached him, told him to lean against the car, asked him if he had any weapons, and patted
him down. He said that the officer found marijuana in his left pants pocket, that the police searched
his car, and that the officers told him they had found cocaine and two pills. He said that the cocaine
was not his, that the amount of marijuana was less than the amount alleged by the police, and that
he had not known about the pills. According to the report, the defendant has two misdemeanor
convictions for marijuana possession, four convictions for speeding, two DUI convictions, and


                                                  -2-
misdemeanor convictions for driving without a license, unlawful possession of a weapon, and theft.
At the time of the report, the defendant also had charges pending in Washington County for two
counts of possession of a Schedule II controlled substance with intent to sell, one count of selling
a Schedule II controlled substance, and one count of possession of a Schedule VI controlled
substance with intent to sell.

        In sentencing the defendant, the trial court noted that the defendant had pled guilty in the
Washington County case to two counts of selling more than one-half gram of cocaine, a Class B
felony, and had received concurrent eight-year sentences as a Range I, standard offender. The trial
court applied enhancement factor (2), that the defendant has a history of criminal convictions and
behavior in addition to those necessary to establish the appropriate range, and gave it great weight.
See T.C.A. § 40-35-114(2). The trial court applied no mitigating factors. See Tenn. Code Ann. §
40-35-113. The trial court ruled that the convictions for cocaine and marijuana possession should
run consecutively to each other due to the defendant’s extensive criminal history and that the
conviction for Alprazolam should run concurrently to the conviction for cocaine possession. See
T.C.A. § 40-35-115(b)(2). Finally, the trial court stated that the defendant’s extensive criminal
history warranted his serving the sentences in this case consecutively to the Washington County
sentences pursuant to Rule 32(c)(2), Tenn. R. Crim. P., which provides for consecutive sentencing
if a defendant has prior sentences that have not been served fully. The defendant raises several
issues regarding his sentences.

         Appellate review of misdemeanor sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d). As the Sentencing
Commission Comments to T.C.A. § 40-35-401(d) note, the burden is now on the appealing party to
show that the sentence is improper. This means that if the trial court followed the statutory
sentencing procedure and gave due consideration and proper weight to the factors and principles that
are relevant to sentencing under the 1989 Sentencing Act, as amended, we may not disturb the
sentence on appeal. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). A Class
A misdemeanant may be incarcerated for up to eleven months and twenty-nine days. T.C.A. §
40-35-111(e)(1). There is no presumptive minimum sentence provided by law for misdemeanor
sentencing. See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

        Initially, we note that the defendant has failed to include the trial transcript in the record on
appeal. When imposing sentences for misdemeanors, the trial court “shall impose a sentence
consistent with the purposes and principles of this chapter.” T.C.A. § 40-35-302(b). One of the
purposes of the Sentencing Act is to impose a sentence “justly deserved in relation to the seriousness
of the offense.” T.C.A. § 40-35-102(1). To do this, the trial court must consider any evidence
presented at the defendant’s trial. See T.C.A. § 40-35-210(b)(1). Moreover, the fact that our
standard of review is de novo on the record requires us to consider this factor. The “failure to
include a transcript of the trial makes it impossible for us to 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). When necessary parts of the record are not included on appeal, this court must presume


                                                  -3-
that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App.
1991).

                    I. ENHANCEMENT AND MITIGATING FACTORS

        The defendant contends that the trial court erred by applying enhancement factor (3), that the
defendant was a leader in the commission of an offense involving two or more criminal actors, to
his sentences. See T.C.A. § 40-25-114(3). In addition, he claims that the trial court failed to apply
mitigating factor (1), that his conduct neither caused nor threatened serious bodily injury, and to
mitigate his sentence under factor (13) on the basis that his family lives nearby and that he has a
good social history. See T.C.A. § 40-35-113(1), (13). The state claims that the trial court properly
applied enhancement factor (3) because there was evidence that the defendant’s girlfriend
participated in the crimes and that the trial court properly refused to apply mitigating factors.

        Regarding enhancement factor (3), we disagree with the defendant’s and the state’s assertions
that the trial court applied this factor to his sentences. Our review of the sentencing hearing
transcript shows that the following exchange occurred:

                       THE COURT: Enhancing factors, the Defendant has a
               previous history of criminal convictions and criminal behavior in
               addition to those necessary to establish the appropriate range. So
               that’s in the presentence report. . . . He’s got two Class B felony
               convictions now in Washington County. I give that great weight.
               Illegal drug use is criminal behavior, I give that great weight.
                       Number two, he was a leader in the commission of an offense
               involving two or more criminal actors, I think there was somebody
               with him, but I’m not sure.

                         [Defense]: They weren’t charged, Your Honor.

                       THE COURT: I know they weren’t charged. I just said I think
               there’s somebody with him.

                         [Defense]: Yes, ma’am, there was some –

                         [State]: There was a young lady –

                         THE COURT: But there [were] no drugs found on that
               person.

                       [State]: She was charged I think with possibly drinking under
               age. I believe that was –



                                                 -4-
                       THE COURT: [J]ust based on his record the two Class B
                felonies, I find that all three should be enhanced to eleven months
                twenty-nine days.

We take the trial court’s statements to mean that it considered applying enhancement factor (3) but
enhanced the defendant’s sentences based only on the application of enhancement factor (2). Thus,
there is no merit to the defendant’s claim that the trial court improperly applied enhancement factor
(3).

         Regarding the trial court’s failure to apply mitigating factor (1), that the defendant’s conduct
neither caused nor threatened serious bodily injury, the trial court refused to apply this factor based
on the facts of the case and because it believed the defendant was a drug dealer. Given that we know
very little about the facts in this case, we will presume that the trial court properly refused to apply
mitigating factor (1). Regarding the trial court’s failure to mitigate the defendant’s sentences based
upon the fact that his parents live nearby and his social history, the trial court noted that the
defendant’s parents were good people but that the defendant had a poor employment history and that
nothing else in his background justified mitigating his sentences. We agree and hold that the trial
court also properly refused to apply mitigating factor (13).

                               II. CONSECUTIVE SENTENCING

         The defendant claims that the trial court improperly ordered him to serve two of his sentences
consecutively because his misdemeanor possession convictions do not equate to the type of criminal
activity warranting consecutive sentencing. He also contends that the trial court erred by ordering
that he serve the sentences consecutively to his Washington County sentences. He argues that the
trial court could not order consecutive sentencing pursuant to Rule 32(c), Tenn. R. Crim. P., because
he had not yet begun serving his Washington County sentences and the rule contemplates a sentence
that has been partially served. In addition, he argues that consecutive sentencing was improper
because the Washington County trial court had ordered that he serve those sentences concurrently
with the sentences in this case and because an alternative sentencing hearing for the Washington
County sentences was pending at the time of the Sullivan County sentencing hearing. The state
claims that the trial court properly ordered consecutive sentencing. We conclude that the trial court
properly ordered that the defendant serve his sentences for cocaine and marijuana possession
consecutively but that the trial court erred by ordering the sentences to be served consecutively to
the Washington County sentences.

        Regarding the defendant’s claim that his misdemeanor criminal history is not extensive
enough to justify consecutive sentences under T.C.A. § 40-35-115(b)(2), we note that the defendant
has eleven prior misdemeanor convictions, has been convicted of two Class B felony drug offenses
committed while on bail in the present case, and has admitted to smoking marijuana since he was
twenty-five years old. We conclude that the defendant’s prior convictions and his drug use
demonstrate an extensive criminal history that justifies consecutive sentencing.



                                                  -5-
         Regarding the trial court’s ordering the sentences be served consecutively to his Washington
County sentences, Rule 32(c)(2), Tenn. R. Crim. P., gives discretion to a trial court to impose
consecutive sentencing when a defendant has “additional sentences not yet fully served.” The
defendant cites nothing to support his claim that this rule contemplates a previous sentence that has
been partially served. We believe that the rule reasonably includes other sentences not begun. That
is, at the time of the sentencing in this case, the defendant had not yet begun to serve his Washington
County sentences. Thus, he had “sentences not yet fully served” pursuant to Rule 32(c)(2).

       We note, though, that T.C.A. § 40-20-111(a) provides that imposition of judgments,
including sentences, for existing convictions shall occur in a progressive fashion with the successive
sentences being determined to be served concurrently or consecutively to those previously imposed.
In Thompson v. State, 565 S.W.2d 889 (Tenn. Crim. App. 1977), the Coffee County Circuit Court
ordered a sentence to be served consecutively with “any sentence which the defendant may receive
in Moore County for criminal conduct prior to the date of this order.” The Moore County charge
apparently was pending at the time of the sentencing. In ordering the deletion of the reference to the
Moore County charges, this court stated,

                       We conclude . . . that under the terms of the statute a sentence
               may only be run consecutively to a previously imposed sentence.
               There is no statutory authority for the in futuro order entered in this
               case. It would be solely within the discretion of the Moore County
               Court to determine whether a sentence resulting from a subsequent
               Moore County conviction should be served consecutively to or
               concurrently with the pre-existing Coffee County sentence now under
               review.

Id. at 890.

       This court reviewed a case similar to the present one in State v. Arnold, 824 S.W.2d 176
(Tenn. Crim. App. 1991), in which the defendant had committed a series of robberies. The
defendant pled guilty to some robberies in Lincoln County and, by agreement, received an eight-year
sentence for each robbery. However, the trial court deferred the issues of concurrent sentencing and
probation until September 5, 1990. On July 19, 1990, the Coffee County Circuit Court ordered that
the defendant’s sentences for the Coffee County robberies be served consecutively to the Lincoln
County sentences. This court concluded that the Coffee County Circuit Court could not require
consecutive sentencing “in futuro” relative to judgments of conviction not yet entered in Lincoln
County. Id. Thus, the defendant’s claim that an alternative sentencing hearing was still pending in
Washington County at the time the sentences were imposed in this case bears on the propriety of the
present sentences being served consecutively to the Washington County sentences.

        The state introduced two documents into evidence purporting to be judgments of conviction
for Class B sales of cocaine in Washington County. They reflect that guilty pleas were entered on
August 15, 2003, and eight-year sentences were imposed, to be served concurrently with the


                                                 -6-
sentences in the present case. The state, however, told the trial court that the defendant had not been
sentenced in Washington County “as far as alternative sentencing” was concerned. When the trial
court questioned how Washington County could get a judgment form done under the circumstances,
defense counsel explained that that was how they did “business” in Washington County. At this
point, we note that the purported judgments of conviction from Washington County do not have an
entry date, a file date, or a court clerk certificate attesting to the authenticity of the judgments of
conviction. Thus, we do not view them to be copies of judgments of conviction that had actually
been entered in the Washington County Circuit Court.

       Under the circumstances presented in the record, we conclude that the final sentencing had
not occurred and judgments of conviction, as provided, in Rule 32(e), Tenn. R. Crim. P. and Rule
17, Tenn. S. Ct. R., had not been filed for the Washington County cases at the time that the defendant
was sentenced in the present case. The trial court was not authorized to require the sentences to run
consecutively to the Washington County sentences, which were pending final disposition.

                              III. ALTERNATIVE SENTENCING

        Finally, the defendant contends that the trial court erred by denying his request for alternative
sentencing. He argues that the presence of a close and supportive family in Kingsport reflects
favorably on his potential for rehabilitation and that the proper weighing of enhancement and
mitigating factors supports an alternative sentence. He also contends that confinement is not needed
to avoid depreciating the seriousness of the offenses in this case. See T.C.A. § 40-35-103(1)(B);
State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981) (stating that a trial court may deny an alternative
sentence based upon the need to avoid depreciating the seriousness of the offense if the
circumstances of the offense are “especially violent, horrifying, shocking, reprehensible, offensive,
or otherwise of an excessive or exaggerated degree”). The state claims that the trial court properly
denied alternative sentencing. We agree with the state.

         When determining if confinement is appropriate, a trial court should consider that (1)
confinement is needed to protect society by restraining a defendant who has a long history of
criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the offense or
confinement is particularly suited to provide an effective deterrence to people likely to commit
similar offenses, or (3) less restrictive measures than confinement have frequently or recently been
applied unsuccessfully to the defendant. State v. Ashby, 823 S.W.2d 166, 169 (citing T.C.A. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in T.C.A. §§ 40-35-113 and -114. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Additionally, a trial court should consider a defendant’s potential or
lack of potential for rehabilitation. T.C.A. § 40-35-103(5).

        In denying the defendant’s request for alternative sentences, the trial court noted that the
defendant did not have a good employment history and began using marijuana when he was twenty-
five years old. Although the trial court noted that the defendant had graduated from high school and
appeared to come from good parents who had steady employment and no criminal histories, it also


                                                  -7-
noted that the defendant stayed away from home for months at a time and dropped out of college.
The trial court stated that it believed the defendant was a drug dealer and that the jury could have
found him guilty of felony possession of cocaine with the intent to sell.

         In addition to the defendant’s recent felony drug convictions in Washington County, his
presentence report shows he has many prior misdemeanor convictions, including two for marijuana
possession. Moreover, his statements in the presentence report indicate that he has not
acknowledged committing the crimes and that he does not reflect a high potential for rehabilitation.
See State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994) (holding that a defendant’s
failure to accept responsibility for a crime is germane to his rehabilitation potential). The trial court
obviously believed the defendant had little potential for rehabilitation. We agree and conclude that
the trial court did not err by ordering the defendant to serve his sentences in confinement.

        Based upon the foregoing and the record, we affirm the trial court’s imposition of maximum,
consecutive misdemeanor sentences to be served in confinement. We reverse the trial court’s order
requiring the sentences to be served consecutively to the defendant’s Washington County sentences
and remand the case for modifying the judgments by deleting any reference to the Washington
County cases.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




                                                  -8-
