        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 25, 2011

                STATE OF TENNESSEE v. ANNA M. STEWARD

                    Appeal from the Circuit Court for Cocke County
                        No. 1851    Ben W. Hooper, II, Judge


              No. E2010-01918-CCA-R3-CD - Filed September 19, 2011




JOSEPH M. TIPTON, P.J., concurring.

        I concur in the results reached in the majority opinion. However, I would affirm the
trial court because of the Defendant’s failure to include the guilty plea hearing transcript in
the record and the attendant presumption that the trial court’s determinations were correct.
See State v. Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling
presumed correct in the absence of an adequate record on appeal).

       The 1989 Sentencing Act, as amended, requires a sentencing court to consider
evidence received at the trial. T.C.A. § 40-35-210(b)(1). Although this section does not
specifically mandate that a sentencing court consider evidence or statements presented in a
plea submission, the guilty plea hearing is the equivalent of a trial for those defendants who
plead guilty and evidence submitted at the hearing should be considered by a sentencing
court. See State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999). With a guilty
plea involving a felony, the evidence supporting the plea and finding of guilt is usually
submitted by proffer or stipulation.

        Although the court in Keen determined that the incomplete record was sufficient to
support the trial court’s ruling, this determination came after it previously stated that “this
Court will not speculate what the missing portions of the record may or may not reveal . . .
the incomplete nature of the record requires us to presume that a six year sentence was
justified in this case.” 996 S.W.2d at 844. Whether the subsequent analysis in Keen is dicta
or a decision of the case on the merits may present confusion in future proceedings, such as
a post-conviction proceeding in which consideration of an issue is barred if the issue was
previously determined on the merits by a court of competent jurisdiction. See T.C.A. § 40-
30-106(f). Furthermore, like the record in Keen, the record before us in this case contains
only some of the basic facts underlying the offense. The facts of the offense are necessary
for this court to conduct a full de novo review of the sentence, especially in light of the trial
court’s determination that alternative sentencing would depreciate the seriousness of the
offense in this case. See T.C.A. § 40-35-210(b)(4) (a sentencing court shall consider the
nature and characteristics of the criminal conduct).

       This court has considered the guilty plea hearing transcript to be vital to a de novo
review and potential resentencing by this court as required by law. See, e.g., State v. Alfred
Gettner, No. E2010-00104-CCA-R3-CD, Sullivan County, slip op. at 6 (Tenn. Crim. App. Aug. 19,
2011); State v. Felix Tamayo, No. M2010-00800-CCA-R3-CD, Davidson County, slip op. at 3-4
(Tenn. Crim. App. May 16, 2011); State v. Gary M. Carter, No. M2006-02341-CCA-R3-CD,
DeKalb County, slip op. at 4 (Tenn. Crim. App. Feb. 21, 2008); T.C.A. § 40-35-401. No
matter how developed a record may appear, we will never know the full extent unless the
guilty plea transcript is included. In this regard, I doubt that my colleagues would grant
sentencing relief to a defendant who failed to include the guilty plea transcript in the record.
I do not believe this court should analyze an incomplete record to determine the merit of a
sentencing complaint.


                                                ____________________________________
                                                JOSEPH M. TIPTON, PRESIDING JUDGE
