        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 29, 2012

                STATE OF TENNESSEE v. EDWARD L. BAIRD

                 Appeal from the Circuit Court for Blount County
                Nos. C-18929, C-19798    Tammy Harrington, Judge


                  No. E2011-01763-CCA-R3-CD - Filed May 23, 2012


Appellant, Edward L. Baird, entered guilty pleas without recommended sentences to three
felony offenses involving distribution of controlled substances. Following a sentencing
hearing, the trial court ordered appellant to serve an effective sentence of ten years in
confinement. Appellant contests the manner of service of his sentence, arguing that the trial
court should have ordered split confinement. Finding no error, we affirm the judgments of
the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, J.,
joined. J ERRY L. S MITH, J., not participating.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public
Defender, Maryville, Tennessee (at trial), for the appellant, Edward L. Baird.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                   I. Procedural History

       A Blount County Grand Jury indicted appellant on three felony counts arising from
two different cases. The offenses included one count of delivery of a Schedule III controlled
substance, a Class D felony; one count of sale or delivery of a Schedule II controlled
substance, a Class C felony; and one count of maintaining a dwelling where controlled
substances are used or sold, a Class D felony. Appellant entered guilty pleas without
recommended sentences to all three counts on June 10, 2011. The court held a sentencing
hearing on August 8, 2011. At the conclusion of the hearing, the trial court sentenced
appellant to the minimum sentences for a Range III, persistent offender. Those sentences
were ten years for sale or delivery of a Schedule II controlled substance and eight years each
for the remaining offenses. The court ordered all three sentences to be served concurrently.
After consideration of the applicable law and the evidence presented at the sentencing
hearing, the trial court ordered the service of appellant’s sentence in confinement. Appellant
filed a timely notice of appeal on August 10, 2011.

                           II. Facts from the Sentencing Hearing

        David Mendez, an officer with the Blount County Drug Task Force, testified that on
November 4, 2009, he was working undercover. He visited appellant’s home, where he
purchased one oxycodone pill from appellant for $25. During the transaction, Officer
Mendez observed several different types of pills in appellant’s possession. Appellant kept
the pills in a safe located in a bedroom. Officer Mendez subsequently purchased ten units
of hydrocodone from appellant on November 19, 2009, for $60.

        The next witness was Robert Nease, a deputy with the Blount County Sheriff’s Office.
Deputy Nease stated he had served eleven years with the drug task force and twenty-eight
years in law enforcement. According to Deputy Nease, the drug of choice in Blount County
was hydrocodone until approximately two years ago. The new drug of choice for that area
is oxycodone, a Schedule II controlled substance. Oxycodone is an opiate, or pain killer.
Many of the prescription medication cases worked by the drug task force involve drug
diversion, a situation in which a legal medication is diverted to illegal sale on the street.
Deputy Nease had observed an increase in prescription abuse and petty crimes in association
with the use of oxycodone. Family members are often the victims of thefts and assaults when
another family member is using oxycodone. In his experience, most people who sell
prescription drugs illegally have no legitimate employment and support themselves either by
selling drugs or by some other illegal means.

       Appellant testified at the sentencing hearing that he was thirty-seven years old. He
had one child, an eighteen-year-old son, and might have been expecting another child. He
moved from Michigan to Tennessee when he was four years old. He attended Doyle High
School through the eleventh grade. He later received a G.E.D. Appellant completed one
semester of education at Pellissippi State Community College. He had supported himself
through his adult life by working in the field of general labor, including steel mills and
construction. Appellant suffers from rheumatoid arthritis, for which he receives 100%

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disability. Doctors have prescribed several different medications for appellant’s condition
to lessen the pain and inflammation. He also takes prednisone regularly for asthma.

       Appellant further stated he became involved with drugs as a child. Around age
sixteen, he began to experiment with marijuana, cocaine, and LSD. When appellant was
eighteen, he became involved with a group of young men who committed several robberies.
According to appellant, his only involvement in the robberies was driving the car.
Authorities discovered the robbery ring when they arrested one of the individuals for using
a stolen credit card. That individual implicated everyone else.

        Appellant pled guilty to the robbery charges and received probation. He admitted he
violated his probation once as a result of failing a drug test. Appellant served forty-five days
for the violation and the court reinstated his probation. During the remainder of his
probation, appellant stopped using drugs. Appellant later received two convictions for
driving under the influence. He served his mandatory sentences and completed probation.
At some point, appellant resumed taking drugs because of the pain of his rheumatoid
arthritis.

       Appellant testified that in November 2009, he lived alone in a house he rented in the
Five Points area of Maryville. A friend called and said that he knew someone who hurt his
back and asked appellant to help him. Appellant tried to help the individual by providing
drugs. Appellant knew that it was illegal when he sold the drugs to the individual. He was
arrested for the offense and his family paid his bond. At the time of the offenses, appellant
was supporting himself with his disability check. When he was arrested on the grand jury
indictment, his family was not able to make his bond.

        Appellant further testified he had not taken illegal drugs in approximately one year.
He had not misused his prescription drugs in approximately ninety days. The only time he
misused his prescription medications was when his pain was severe. Appellant stated he
could pass a drug screen. Appellant did not believe that he had a drug problem at the time
of the sentencing hearing, although he admitted he had a problem with drugs in the past. He
claimed that if granted probation, he would stay out of trouble and would follow all of the
court’s orders.

       At the beginning of the sentencing hearing, the parties agreed that appellant should
be sentenced as a Range III, persistent offender. The parties further agreed that the Class C
felony carried a sentence range of ten to fifteen years. The sentence range for the remaining
Class D felonies was eight to twelve years. The court sentenced appellant to the minimum
sentence on each count, with all sentences to be served concurrently with each other. Thus,
appellant received an effective ten-year sentence to be served at forty-five percent.

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Following a thorough consideration of all of the necessary factors, the trial court ordered
appellant to serve his entire sentence in confinement. Appellant does not contest the length
of his sentence but argues that he should have been granted enhanced probation or split
confinement.

        In deciding the appropriate sentence, the trial court considered the evidence presented
at the sentencing hearing; the presentence report; the principles of sentencing; the sentencing
alternatives; the nature and characteristics of the criminal conduct involved; the evidence and
information pertaining to enhancing and mitigating factors; statistical evidence provided by
the Administrative Office of the Courts as to sentencing practices for similar offenses;
appellant’s statements; and proof concerning rehabilitation. The court found one enhancing
factor, that the appellant had accrued more convictions than the requisite number to establish
his offender range. As a mitigating factor, the trial court found that appellant’s conduct
neither caused nor threatened serious bodily injury. The trial court further concluded that
appellant’s case did not mandate consecutive sentences.

       The trial court also determined that appellant should not be considered a favorable
candidate for probation. In addition to the factors listed above, in ruling on the manner of
service of appellant’s sentence, the court considered appellant’s physical and mental
condition and his prior criminal history. The court found that appellant had a history of drug
abuse and that several of his criminal convictions involved alcohol or narcotics. The court
reviewed whether appellant could be rehabilitated during the probationary period. The court
found that based on appellant’s testimony regarding his misuse of prescription drugs and his
current health condition, appellant presented a high risk of continuing his abuse of
prescription medications. In addition, appellant was at a high risk of committing another
crime while on probation.

       The trial court reviewed appellant’s criminal history and probationary history. The
court found that appellant violated the terms of probation one time due to a failed drug
screen. Aside from that violation, appellant successfully completed all other probationary
periods. The court was concerned because appellant repeatedly committed new criminal
offenses. The trial court ruled that the interest of society would not be served if appellant
received probation, as appellant presented a great risk of engaging in future criminal conduct.
The court ruled that due to the fact that appellant is a Range III, persistent offender, a
sentence of full probation would depreciate the seriousness of his crime.

                                         III. Analysis

       As an initial matter, we address the State’s argument that appellant has waived the
alternative sentencing issue by failing to include a transcript of the guilty plea hearing in the

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appellate record. This court has held that “the guilty plea hearing is the equivalent of a trial,
in that it allows the State the opportunity to present the facts underlying the offense.” State
v. Keen, 996 S.W.2d 842, 843 (Tenn. Crim. App. 1999). The court further opined that “[f]or
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 844.

        In this case, appellant pled guilty without recommended sentences. Disagreement
exists among previous opinions issued by this court over whether, on appellate review, we
should presume the correctness of the trial court’s sentencing determination in the absence
of the guilty plea transcript in the record. Some opinions have determined that this court
should address the merits of the sentencing determination if a thorough review is possible
without the transcript, while other opinions have concluded that an appellant waives the right
to a full review of the trial court’s sentencing determination by failing to include the guilty
plea transcript in the appellate record. See State v. Anna M. Steward, No. E2010-01918-
CCA-R3-CD, 2011 WL 4346659, at *2-5 (Tenn. Crim. App. Sept. 19, 2011); State v. Darren
Allan Vincent, No. M2010-02468-CCS-R3-CD, 2011 WL 4346659, at *5 (Tenn. Crim. App.
Jan. 20, 2012) (Bivins, J., concurring). But see Darren Allan Vincent, 2012 WL 187347, at
*2 (majority opinion); Anna M. Steward, 2011 WL 4346659, at *5-6 (Tipton, P.J.,
concurring). See generally Keen, 996 S.W.2d at 843-44 (holding that, despite a “bare”
record, it was sufficient to reach the merits, but emphasizing the importance of including
guilty plea transcript in appellate record).1 While we acknowledge that, pursuant to the
controlling authority of Keen, inclusion of the guilty plea transcript is preferred, and is often
necessary, we have determined that in this case the record is adequate for a thorough
consideration of the merits without inclusion of the transcript of the guilty plea hearing.

       At the sentencing hearing, the State presented the testimony of the undercover officer
who made the illegal drug purchases from appellant. The officer testified fully regarding the
facts underlying the offense. The transcript of the guilty plea hearing is not essential to our
determination of the sentencing issue in this case. Further, appellant has raised no allegations
of error with respect to the guilty plea hearing. We decline to hold that appellant waived this
issue for our review. We further hold that, in this case, the record is sufficient to allow this
court to conduct a de novo review, affording a presumption of correctness to the decisions
reached by the trial court.

       We begin our analysis with the proposition that an appellant is eligible for alternative
sentencing if the sentence actually imposed is ten years or less. See Tenn. Code Ann.


       1
         The Tennessee Supreme Court has granted permission to appeal in a case that may determine this
issue. See State v. Christine Caudle, No. M2010-01172-CCA-R3-CD (Tenn. Crim. App. Dec. 8, 2011),
perm. app. granted, M2010-01172- SC-R11-CD (Tenn. April 12, 2012).

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§ 40-35-303(a) (2010). An especially mitigated or standard offender convicted of a Class
C, D, or E felony is considered to be a favorable candidate for alternative sentencing in
absence of evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6) (2010). While
appellant’s ten-year sentence makes him eligible for alternative sentencing, his status as a
persistent offender deprives him of favorable consideration for probation. Tenn. Code Ann.
§§ 40-35-102(6)(A), -107(a) (2010).

         When reviewing sentencing issues raised by an appellant, including the denial of
probation, this court conducts a de novo review, according the trial court’s findings a
presumption of correctness. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008); Tenn. Code
Ann. § 40-35-401(d) (2010). The presumption of correctness is conditioned upon an
affirmative showing that the trial court properly considered the sentencing principles, as well
as all relevant facts and circumstances. State v. Franklin, 308 S.W.3d 799, 825 (Tenn. 2010)
(citing Carter, 254 S.W.3d at 344-45). A trial court’s failure to adhere to the well-
established guidelines for imposing the sentence will result in a simple de novo review by
this court with no presumption of correctness of the trial court’s ruling. State v. Pierce, 138
S.W.3d 820, 827 (Tenn. 2004). Provided the trial court followed the appropriate procedures
and imposed a lawful sentence, all of which are supported by the record, “this Court may not
modify the sentence, even if actually preferring a different result.” State v. Goodwin, 143
S.W.3d 771, 783 (Tenn. 2004) (citing State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998)).

        In challenging the sentenced imposed by the trial court, appellant bears the burden of
proving that the sentence is erroneous. Franklin, 308 S.W.3d at 825 (citing Tenn. Code Ann.
§ 40-35-401, Sentencing Comm’n Cmts (2010); State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991)). Appellant does not claim that the trial court failed to follow the correct sentencing
procedure or otherwise failed to consider relevant facts and circumstances. His argument
rests solely on the relative lack of seriousness of his present offenses in comparison with
other similar drug offenses, and the historical nature of his previous felony convictions.
Appellant has failed to demonstrate that the trial court erroneously denied him probation.

       Every sentencing decision by a trial court entails a case-by-case analysis. State v.
Majid Farraj, No. W2009-02566-CCA-R3-CD, 2011 WL 4716228, at *4 (Tenn. Crim. App.
Oct. 6, 2011) (citing State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995)).
While a trial court must consider several circumstances in determining an appropriate
sentence, it is relevant for the court to evaluate whether a sentence of probation would unduly
depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn.
1997); Majid Farraj, 2011 WL 4716228, at *4 (citing Bingham, 910 S.W.2d at 456).

       A thorough review of the record reveals that the trial court properly followed the
statutory procedures and considered all relevant facts and circumstances in denying appellant

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probation. By evidence of prior predicate felony convictions, the parties and the trial court
agreed that appellant was a Range III, persistent offender. The sentencing court found that
appellant had garnered criminal convictions greater than the number of requisite convictions
to establish his offender range. The trial court concluded that granting probation to a Range
III, persistent offender would depreciate the seriousness of the offenses, especially in light
of the violent nature of his previous felony convictions. The court further found the interest
of society would not be served by granting appellant probation because appellant posed a
high risk of committing additional drug-related offenses due to his admitted abuse of
prescription medications and his present health condition. This court agrees with the trial
court’s determination.

                                      IV. Conclusion

       After a thorough review of the record, this court has concluded that the trial court
properly ordered that appellant serve his ten-year sentence in full confinement. Accordingly,
the judgments of the trial court are affirmed.

                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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