        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 24, 2009

            STATE OF TENNESSEE v. JUSTIN MICHAEL SCOTT

               Direct Appeal from the Criminal Court for Knox County
                    No. 89759    Richard R. Baumgartner, Judge


                No. E2009-00929-CCA-R3-CD- Filed February 11, 2010


The appellant, Justin Michael Scott, pled guilty in the Knox County Criminal Court to
vehicular assault and driving on a revoked license. He received a total effective sentence of
three years, to be suspended after service of six months in the Knox County Jail. On appeal,
the appellant challenges the trial court’s failure to grant a sentence of full probation. Upon
review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Russell T. Greene, Knoxville, Tennessee, for the appellant, Justin Michael Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Senior Counsel;
Randall E. Nichols, District Attorney General; and Kenneth Irvine, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        On August 4, 2008, the Knox County Grand Jury returned a multi-count indictment
charging the appellant with vehicular assault, reckless endangerment, driving under the
influence, and driving on a revoked license. The guilty plea hearing transcript was not
included in the appellate record for our review, but the plea agreement and the judgments
reflect that the appellant pled guilty to vehicular assault, a Class D felony, and driving on a
revoked license, a Class B misdemeanor. The plea agreement further provided that the
appellant, as a standard Range I offender, would receive sentences of three years and six
months, respectively, with the sentences to be served concurrently.

       At the sentencing hearing, the trial court stated that it had read the presentence report
and victim impact statements. The court remarked that the appellant’s case was “troubling”
but observed that the appellant had acknowledged responsibility. The court noted that the
appellant admitted to medical personnel that he had consumed eight or nine beers before
driving on the night in question. The court further stated that the appellant had driven across
the highway and collided “head-on” with another individual, who suffered “tremendous
damage,” and that the accident would have a “lifelong impact on [the victim].” Additionally,
the court stated that the appellant was driving without insurance and without a driver’s
license.

       The trial court found that the appellant placed himself and the general public in great
danger by making the “conscious decision” to drive intoxicated and without a driver’s
license. The trial court ordered the appellant to serve six months in the Knox County Jail
with the remainder to be served on probation. On appeal, the appellant challenges the trial
court’s denial of full probation.

                                         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 statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant
in his own behalf; and (8) 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 sentences. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts. 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.

       An appellant is eligible for alternative sentencing if the sentence actually imposed is
ten years or less. See Tenn. Code Ann. § 40-35-303(a) (2006). The appellant’s sentences
meet this requirement. Moreover, an appellant who is an especially mitigated or standard

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offender convicted of a Class C, D, or E felony should be considered a favorable candidate
for alternative sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-
102(6). The following sentencing considerations, set forth in Tennessee Code Annotated
section 40-35-103(1), may constitute “evidence to the contrary”:

               (A) Confinement is necessary to protect society by restraining a
               defendant who has a long history of criminal conduct;

               (B) Confinement is necessary to avoid depreciating the
               seriousness of the offense or confinement is particularly suited
               to provide an effective deterrence to others likely to commit
               similar offenses; or

               (C) Measures less restrictive than confinement have frequently
               or recently been applied unsuccessfully to the defendant.

State v. Zeolia, 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996). Additionally, a court should
consider the defendant’s potential or lack of potential for rehabilitation when determining
if an alternative sentence would be appropriate. See Tenn. Code Ann. § 40-35-103(5).

       In the instant case, the trial court granted the appellant the alternative sentence of split
confinement. However, the appellant complains that the trial court erred in not granting him
full probation. An appellant seeking full probation bears the burden of establishing his
suitability for full probation, regardless of whether he is considered a favorable candidate for
alternative sentencing. See State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996);
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) (internal quotation marks omitted), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 8 (Tenn. 2000). Moreover,

                      [i]n determining one’s suitability for full probation, the
               court may consider the circumstances of the offense, the
               defendant’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.

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       As we previously noted, some of the considerations in our de novo review are the
nature and characteristics of the criminal conduct involved, the presentence report, and
evidence and information offered by the parties on enhancement and mitigating factors.
However, the appellant has failed to include the transcript of the guilty plea hearing, the
presentence report, and the victim impact statements in the record for our review. This court
has previously noted:

              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.

State v. Keen, 996 S.W.2d 842, 843 (Tenn. Crim. App. 1999) (citation omitted).
Accordingly, the appellant’s “failure to include the transcript of the guilty plea hearing in the
record prohibits the court’s conducting a full de novo review of the sentence under
[Tennessee Code Annotated section] 40-35-210(b).” State v. Shatha Litisser Jones, No.
W2002-02697-CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App. at Jackson, July
14, 2003). The appellant carries the burden of ensuring that the record on appeal conveys
“a fair, accurate, and complete account of what has transpired with respect to those issues
that are the bases of appeal.” Tenn. R. App. P. 24(b); see also Thompson v. State, 958
S.W.2d 156, 172 (Tenn. Crim. App. 1997). “In the absence of an adequate record on appeal,
this court must presume that the trial court’s rulings were supported by sufficient evidence.”
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Accordingly, we presume that
the trial court correctly imposed a sentence of split confinement.

                                       III. Conclusion

       Based upon the foregoing, we affirm the judgments of the trial court.

                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




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