             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                          MARCH 1998 SESSION
                                                              July 1, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9703-CR-00093
                              )
                              )    Sumner County
v.                            )
                              )    Honorable Jane Wheatcraft, Judge
                              )
JAMES ALLEN GOOCH, SR.,       )    (Sale of less than one-half gram of
a/k/a “Angie Foot”            )    cocaine)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Mark W. Henderson                  John Knox Walkup
1719 West End Avenue               Attorney General of Tennessee
Suite 600-E                               and
Nashville, TN 37203                Georgia Blythe Felner
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Lawrence Ray Whitley
                                   District Attorney General
                                           and
                                   Dee Gay
                                   Assistant District Attorney General
                                   113 West Main Street
                                   Gallatin, TN 37066




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION


             The defendant, James Allen Gooch, Sr., a/k/a “Angie Foot,” appeals as of

right from his conviction upon a guilty plea in the Sumner County Criminal Court for the

sale of under one-half gram of cocaine, a Class C felony. The defendant was charged

with two counts of selling less than one-half gram of cocaine, possession of marijuana,

and possession of drug paraphernalia. Pursuant to an agreement, the defendant

entered a guilty plea to one count of selling less than one-half gram of cocaine, and the

remaining charges were dismissed. The defendant was sentenced as a Range I,

standard offender to five years in the custody of the Department of Correction. The trial

court also imposed a two-thousand-dollar fine. The defendant contends that the trial

court erred by failing to consider a sentence other than confinement by the Department

of Correction. We affirm the judgment of the trial court.



             The record reflects that on April 1, 1996, the defendant sold forty dollars

worth of crack cocaine to a confidential informant. The next day, the defendant sold

twenty dollars worth of crack cocaine to the same informant. When the defendant was

arrested on April 4, 1996, he was in possession of marijuana and drug paraphernalia.



             At the sentencing hearing, the defendant testified that he had a six-month-

old son who lived with him. He also stated that he worked full-time for General

Contractors in Nashville. The defendant stated that he sold drugs to support his

cocaine habit but said that he was no longer using cocaine. The defendant admitted

that when he entered his guilty plea six weeks earlier, he would not submit to a drug

test because he believed that he would test positive for cocaine. He also admitted that

he had been involved in either the use or sale of drugs for twenty years. He stated that

when he would travel to buy cocaine he would use it while driving back home. He

admitted that he could not count the number of people to whom he had sold drugs. He

admitted that he had numerous prior convictions, mostly misdemeanors, ranging from


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drug offenses to attempted aggravated assault. The defendant testified that he

continued to sell cocaine and marijuana while he was on probation for another crime.



               The presentence report reflects that the defendant dropped out of school

in the ninth grade. In the report, the defendant estimated that he used an ounce of

marijuana and an eight ball of cocaine per week. He had been in two drug and alcohol

treatment programs and completed only one of those programs. The report states that

the defendant had thirty-one prior convictions, one for felony drug sale and the

remainder for misdemeanors involving such things as theft, weapons offenses,

worthless checks, harassment, possession of a gambling device, unlawful storage of

liquor for sale, contributing to the delinquency of a minor, attempted aggravated assault,

assault and battery, public intoxication, aiding and abetting prostitution, and disorderly

conduct.



              The trial court, denying alternative sentencing, sentenced the defendant to

five years incarceration. The court recognized that most of the defendant’s prior

convictions were misdemeanors, but the court expressed concern over the number of

lives that were affected by the defendant’s long history of drug use and sales.



              Appellate review of 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)

and -402(d). As the Sentencing Commission Comments to these sections note, the

burden is now on the appealing party to show that the sentencing is improper. This

means that if the trial court follows the statutory sentencing procedure, makes findings

of fact that are adequately supported by the record, and gives due consideration and

proper application of the factors and principles that are relevant to sentencing under the

1989 Act, we may not disturb the sentence even if a different result were preferred.

State v. Fletcher, 803 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



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              As a Range I, standard offender who has been convicted of a Class C

felony, the defendant is presumed to be a favorable candidate for a sentence other

than confinement, if there is no evidence to the contrary. See T.C.A. § 40-35-102(5)

and (6). The presumption in favor of alternative sentencing may be rebutted if (1)

“confinement is necessary to protect society by restraining the defendant who has a

long history of criminal conduct,” (2) “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 (3) “measures less

restrictive than confinement have frequently or recently been applied unsuccessfully to

the defendant.” T.C.A. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166,

169 (Tenn. Crim. App. 1991).



              The defendant contends that the trial court failed to give adequate

consideration to sentencing alternative to incarceration in the custody of the

Department of Correction. Specifically, the defendant argues that in light of his

responsibility for his six-month-old son, the trial court should have given greater

consideration to sentencing him to some form of probation, house arrest, or

incarceration with work release.



              Initially, we note that the record does not include a transcript of the guilty

plea hearing at which the convicting evidence would have been presented by stipulation

or testimony. In order for us to conduct a proper de novo review, the guilty plea hearing

transcript should be made a part of the record on appeal. The defendant must prepare

a transcript of the evidence that is necessary to convey a fair, accurate and complete

account of what transpired with respect to those issues that are the bases of appeal.

T.R.A.P. 24(b). Absent a record of the guilty plea hearing, at which evidence relevant

to sentencing is often provided, we are unable to perform a complete de novo review.




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              In any event, although the trial court did not provide a record of findings

and considerations as contemplated by the sentencing laws, we conclude that the

record supports the sentence imposed. The trial court indicated that the defendant’s

long criminal history and the resulting danger to society outweighed all other

considerations. With the defendant having thirty-one prior convictions, thirteen of which

are drug-related, we conclude that the evidence supports the sentence imposed. We

do not believe that the claimed hardship on the defendant’s family warrants a different

result under the circumstances of this case.



              In consideration of the foregoing and the record as a whole, the judgment

of conviction entered by the trial court is affirmed.




                                           Joseph M. Tipton, Judge



CONCUR:




David H. Welles, Judge




Joe G. Riley, Judge




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