         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs March 30, 2010

                 STATE OF TENNESSEE v. MATTHEW I. TART

                 Appeal from the Criminal Court for Sullivan County
            Nos. S56438 and S56439    Robert H. Montgomery, Jr., Judge


                  No. E2009-01315-CCA-R3-CD - Filed April 21, 2010


The defendant, Matthew I. Tart, appeals from the Sullivan County Criminal Court’s denial
of alternative sentencing following his pleas of guilty to charges of violating the motor
vehicle habitual offender law, speeding, and leaving the scene of an accident. Upon our
review of the record, we affirm the judgments of the trial court, but we remand for the trial
court to consider amendments to the judgments.

     Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed; Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN, J., joined. D. K ELLY T HOMAS, J R., J., filed a concurring opinion.

Stephen M. Wallace, District Public Defender; and Richard Tate, Assistant Public Defender,
for the appellant, Matthew I. Tart.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Laura Rayment, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

              The trial court accepted the parties’ plea agreement that provided for an
effective four-and-one-half-year, Range I sentence, subject to the trial court’s determining
the manner of service of the sentence.

                In the guilty plea hearing, the court referred to certain affidavits that set forth
the factual bases for the convictions, and it indicated that the parties had stipulated the facts
stated in the affidavits. These affidavits were not, however, included in the record on appeal.
               In the sentencing hearing, the defendant’s wife testified that the defendant
worked in construction, that they had filed bankruptcy due to financial distress, and that the
family, which included three small children, needed the income the defendant could provide.
The defendant testified that his three charges for driving in violation of the habitual offender
law resulted from his taking his children “to do what they needed to do, trying to be a dad.”

               A Board of Probation and Parole report detailing the defendant’s probation
supervision was admitted as an exhibit to the hearing. The defendant was placed on “Bond
Supervision” in 2000 for a third conviction of driving under the influence (DUI). In 2001,
he was placed on probation in that DUI case and for driving on a revoked license and leaving
the scene of an accident. In 2002, his suspended sentences expired. In 2005, the defendant
was convicted of violating the motor vehicle habitual offender law and third-offense DUI,
resulting in an 18-month sentence. In 2006, he received a determinate release. He completed
determinate release probation on October 24, 2007, and misdemeanor probation on
November 12, 2007. The report indicated there were “no violation reports filed, however,
the offender was rarely employed during any of the probation periods.” The report stated that
the defendant paid the supervision fees in full but that he failed to pay court costs and fines
which, as of June 8, 2009, totaled $4,9l7.04.1

                 At the conclusion of the hearing, the trial court found that the defendant had
a significant prior record of offending and that he was on bond for the first habitual offender
conviction under consideration when he committed the other two such violations. The trial
court gave slight weight to the defendant’s claim that his offending neither caused nor
threatened serious bodily injury but declined to find either that he offended due to strong
provocation or that substantial grounds existed to excuse or justify his offenses. The court
also declined to find that the defendant’s offending was motivated by a desire to provide
necessities for his family or that he evinced genuine remorse. The court found that the
defendant was not a “very strong candidate for probation simply because . . . [the court
doubted] . . . whether [he would] be able to serve . . . a probated sentence without just
continuing to do whatever [he] want[ed] to do because in [his] mind [he would] justify that
it’s all right.” The court ordered the defendant “to serve . . . 36 months” and placed him on
probation for the balance of 18 months.

              On appeal, the defendant claims that the trial court erred in denying him
probation or some other form of alternative sentencing.

                “The burden of demonstrating that a sentence is erroneous is upon the party


        1
          The report listed a number of arrests between 1992 and 2000. The trial court and the State in its
brief refer to these events as convictions, but the record does not evince such a record of “convictions.”

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appealing.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). The record as presented on
appeal fails to inform this court of the nature and circumstances surrounding the conviction
offenses and, accordingly, deprives this court the opportunity to conduct its mandated de
novo review of the sentencing determinations. The appellant bears the burden of preparing
an adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which
includes the duty to “have prepared a transcript of such part of the evidence or proceedings
as is necessary to convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal,” Tenn. R. App. P. 24(b). If the appellant
fails to file an adequate record, this court must presume the trial court’s ruling was correct.
See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). In the absence of
the affidavits referenced in the transcript of the plea submission hearing, we are without even
the most basic facts upon which we could conduct a de novo review. See T.C.A. §
40-35-401(d) (2006) (requiring that appellate court conduct a de novo review of the
sentencing decision of the trial court with a presumption that the determinations made by the
trial court are correct). In consequence, we must presume that the trial court correctly denied
alternative sentencing in this case. See State v. Shawn Nicholas Ferguson, No. M2008-
00241-CCA-R3-CD (Tenn. Crim. App., Nashville, June 24, 2009).

               That aside, we notice aspects of the sentences as imposed to which we call
attention. The trial court ordered each one-and-one-half-year effective sentence to be served
via one year in confinement followed by six months on probation. As such, each sentence
bespeaks a split confinement arrangement. See T.C.A. §§ 40-35-104(c)(5), -306. One might
infer that, by using this arrangement and by referring to the felony sentences in terms of
months, the trial court intended for the defendant to serve a total of three years before being
released on probation for one and one-half years. In the event such was the intention of the
trial court, we view the arrangement as plain error and offer the following comments.

             Tennessee Code Annotated section 40-35-501(a)(3), relative to split
confinement, provides in part:

              Notwithstanding any other provision of law, inmates with felony
              sentences of two (2) years or less shall have the remainder of
              their original sentence suspended upon reaching their release
              eligibility date. The release shall not occur for sentences of two
              (2) years or less when the sentences are part of a consecutive
              sentence whose term is greater than two (2) years.

T.C.A. § 40-35-501(a)(3). Each of the defendant’s one-and-one-half-year sentence blocks
would, if standing alone, be subject to section 501(a)(3)’s first clause that mandates release
upon the offender’s reaching his release eligibility date which, in the case of the defendant,

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a Range I offender, would be 30 percent of each sentence. However, each one-and-one-half-
year block runs consecutively with the others, creating an effective sentence of four and one-
half years. As such, as provided in the section’s second clause, the defendant’s effective
sentence, being in excess of two years, is not subject to the mandated release upon attainment
of the release eligibility date. The second clause of section 501(a)(3) does not mean,
however, that the service of three years in confinement is authorized.

              Code section 40-35-306(a) empowers the court to order continuous service of
365 days as a component of split confinement. The Code grants no authority to extend the
confinement portion of a split confinement sentence beyond 365 days. See State v. Demetry
Fitzgerald Conley, No. M2007-01667-CCA-R3-CD (Tenn. Crim. App., Nashville, July 9,
2009) (Witt, J., dissenting).

               In the present case, on the one hand, the post-confinement feature of probation
in each of the three felony sentences suggests split confinement, and as such the maximum
time of confinement would be 365 days, followed by three and one-half years of probation.
On the other hand, if we were to treat the provision for probation as superfluous, the
defendant would be eligible for release as a Range I offender in 16.2 months (30 percent of
four and one-half years).2

              Thus, we remand the case to the trial court for that court to determine whether
it wishes to retain the probation component, thus invoking section 40-35-306’s 365-day
limitation on split confinement. If so, the court should amend its judgments to reflect the
365-day period of confinement followed by three and one-half years’ probation. If not, the
court should amend its judgments to delete the provisions for probation.

        Except for the provisions herein made for the remand, the judgments of the trial court
are affirmed.


                                                       _________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




       2
         Under this second formulation, the defendant would be released approximately 20 months sooner
than he would with the trial court’s provision for probation.

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