         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 15, 2003 Session

               STATE OF TENNESSEE v. STEPHANIE C. HADLEY

                   Direct Appeal from the Circuit Court for Dickson County
                           No. CR-5662     Robert E. Burch, Judge



                    No. M2002-02441-CCA-R3-CD - Filed August 15, 2003


The defendant pled guilty to felony failure to appear. Following a sentencing hearing, the trial court
imposed a one-year sentence with ninety days of incarceration followed by probation. The
defendant appeals the denial of full probation. We affirm the judgment of the trial court but remand
for correction of a clerical error in the judgment.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                        Remanded for Correction of Clerical Error

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee (on appeal); William (Jake) Bradley Lockert, III, District
Public Defender; and Christopher L. Young, Assistant District Public Defender (at trial), for the
appellant, Stephanie C. Hadley.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Dan M. Alsobrooks, District Attorney General; and Suzanne M. Lockert, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The defendant pled guilty to failure to appear, a Class E felony. She did not appear at her
July 18, 2001, jury trial for theft charges which were ultimately dismissed. At sentencing, the state
presented a presentence report reflecting two prior convictions. The defendant testified she was
unable to appear at her theft trial due to “transportation problems.” She admitted she had not “really
taken the [theft] case seriously.” She initially testified she had only one prior conviction for writing
a worthless check; however, on cross-examination, she conceded she also had a prior conviction for
drug possession. The trial court imposed the presumptive sentence of one year. The trial court
found full probation was not warranted, noting the defendant’s untruthful testimony regarding one
of her prior convictions and the need to avoid depreciating the seriousness of the offense. Therefore,
the trial court ordered the defendant to serve her sentence in split confinement with ninety days
incarceration. In this appeal, the defendant contends the trial court erred in denying her full
probation.

                                  I. STANDARD OF REVIEW

        A defendant’s sentence is reviewed by the appellate courts de novo with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to apply to the trial court’s actions,
there must be an affirmative showing in the record that the trial court considered sentencing
principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999). However, if the trial court does not comply with statutory sentencing provisions, our review
of the sentence is de novo with no presumption the trial court’s determinations were correct. State
v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

                      II. ABSENCE OF GUILTY PLEA TRANSCRIPT

        The facts and circumstances of the offense were important to the trial court’s sentencing
determinations; however, the transcript of the guilty plea proceeding is absent from the record.
Since we deem the guilty plea proceeding essential to the determination of the issue presented, our
proper course of action is to sua sponte presume the trial court’s decision is correct. State v. Keen,
996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); see also State v. Coolidge, 915 S.W.2d 820, 826-27
(Tenn. Crim. App. 1995) (specifically stating that the absence of a portion of the record relating to
sentencing requires the court to presume the sentence was correct). By failing to produce an
adequate record, the defendant has waived any claim that the conclusions of the trial court are
incorrect. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). However, since the
available record amply supports the sentencing decision of the trial court, we will address the merits
of the issue raised by the defendant.

                                   III. TOTAL PROBATION

        A defendant is eligible for probation if the sentence received by the defendant is eight years
or less, subject to some statutory exclusions. Tenn. Code Ann. § 40-35-303(a). An especially
mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary. Tenn. Code Ann.
§ 40-35-102(6). However, although a defendant may be presumed to be a favorable candidate for
alternative sentencing, the defendant has the burden of establishing suitability for total probation.
Tenn. Code Ann. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996).
Even though probation must be automatically considered, “the defendant is not automatically
entitled to probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b), Sentencing Commission
Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A defendant seeking
full probation bears the burden on appeal of showing the sentence imposed is improper, and that full
probation will be in the best interest of the defendant and the public. State v. Baker, 966 S.W.2d
429, 434 (Tenn. Crim. App. 1997).



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        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public.
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim.
App. 1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on
a defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

                                          IV. ANALYSIS

        The record supports the trial court’s finding that the defendant testified untruthfully when
she stated she had only one prior conviction. See id. The trial court is in a much better position to
determine credibility than this court. Further, the record supports the trial court’s finding that there
was a need to avoid depreciating the seriousness of the offense. The defendant’s testimony indicated
she did not take the proceedings against her seriously. Although the defendant only had two prior
convictions, she had numerous other arrests which ultimately resulted in dismissals; thus, she was
thoroughly familiar with the criminal justice system. We also note the trial court’s observation that
the defendant failed to appear before the jury summoned on her behalf.

       The defendant has not met her burden of establishing her entitlement to total probation. We
are unable to conclude the trial court erred in requiring the defendant to serve ninety days of
incarceration as part of her one-year sentence.

                            V. CLERICAL ERROR IN JUDGMENT

       While the sentencing transcript indicates the defendant was to serve ninety days of her
sentence in incarceration, the judgment reflects she was to serve ninety days of probation. Where
the verbatim transcript of the proceedings is in conflict with the written judgment, the transcript
controls. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). Further, we note the
judgment shows the defendant was sentenced to the Department of Correction. The designated
place of confinement for split confinement sentences must be the local jail or workhouse. Tenn.
Code Ann. § 40-35-306(a), -314(a).

         We affirm the sentencing determinations of the trial court. However, we remand this matter
to the trial court for entry of a corrected judgment accurately reflecting the sentence imposed by the
trial court.




                                                        JOE G. RILEY, JUDGE




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