             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                             April 23, 2002 Session

     STATE OF TENNESSEE v. CINDY L. HOLDER a/k/a CINDY LYNN
                           PLEMMONS

                     Direct Appeal from the Circuit Court for Blount County
             No. C-12061, 12062, C-12084, 12085, 12087   D. Kelly Thomas, Jr., Judge



                                          No. E2000-01191-CCA-R3-CD
                                               February 21, 2003

The defendant entered guilty pleas to aggravated assault, A misdemeanor theft of services, E felony
vandalism, and two counts of aggravated burglary.1 For these offenses the defendant received an
agreed upon effective sentence of six years with the manner of service to be determined at a
subsequent sentencing hearing. At the conclusion of this hearing, the trial court denied the defendant
alternative sentencing. Through the instant appeal the defendant contests this denial. However, after
reviewing the record and relevant authorities, we find that the defendant waived this issue and that,
even if not waived, the claim lacks merit. We, therefore, affirm the trial court’s action

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

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and THOMAS
T. WOODA LL, J., joined.

Lance A. Evans and K. Gregory Williams, Maryville, Tennessee, for the appellant, Cindy L. Holder,
a/k/a Cindy Lynn Plemmons.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; Mike
Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney General, for
the appellee, State of Tennessee.



         1
            In announc ing its senten ce, the trial court also reference d a D felony theft and an A misd emeanor theft. These
were the offenses underlying the aggravated burglary charges, and judgments reflecting respective sentences of two years
and of eleve n months and twenty-nine days are included in Volume II of the technical record. The plea agreement form
for this set of four offenses lists the thefts among the relevant charges but do es not mention any acquiescence on the
defendant’s part to plead guilty to the theft offenses. Furthermore, though the State’s brief includes these two convictions
in its “Statement of the Case,” the defendant’s does not. As the record before this Court includes no transcript of the plea
hearing, we lack additional information to clarify this matter before providing the history of this case. However, as these
sentences do not change the effective se ntence received by the defendant or impact the manner o f service, we are
none theless able to address the single issue p resented.
                                              OPINION

                                        Factual Background

         The offenses involved in this appeal arise out of three separate incidents. On August 27,
1999, the defendant, after arriving at her destination, displayed a weapon to avoid paying a cab driver
for his services. Though she denies pulling a weapon on this individual, she pled guilty as charged
to aggravated assault with a deadly weapon. On September 14, 1999, while on bond for these
offenses, the defendant burglarized both Paul Myers’ residence and Denise Tuttle’s residence,
allegedly taking property valued at over one thousand dollars from one and under five hundred
dollars from the other. Thereafter, during her incarceration pending the resolution of these charges,
the defendant threw a tray, hitting and damaging a sprinkler head in the jail. The water released
flooded the dayroom and three cells, resulting in over five hundred dollars’ worth of damage.
         At the sentencing hearing the defendant provided further details regarding the offenses
beginning with the aggravated assault. She stated that she had been drinking and doing cocaine for
some time prior to entering the cab. As a result, she claimed only to remember getting into the
vehicle and getting out with her bag, but she averred that she had “never owned a gun in her life.”
On cross examination she acknowledged a statement in her handwriting in which she admitted to
flashing a toy water gun at the victim; however, she then asserted that she had not exhibited any type
of gun to the driver and that she could not even recall giving the statement.
         Concerning the aggravated burglary of Myers’ apartment, the defendant indicated that she
was acquainted with the victim and that she “had been up for a couple of days.” According to her
account she had pawned her television to a third party in order to buy drugs. The third party later
sold the set to Myers, who would not agree to allow the defendant to purchase the set back from him.
Thus, the defendant explained that she had gone to his apartment and taken it. Again, the defendant
contended that she was high at the time and that she had sought to regain the set in order to pawn it
for money to buy more drugs. The defendant further claimed that she had not been the only person
involved in this burglary and the one at Tuttle’s home but had taken the fall for others, whom she
named in court.
         Turning more specifically to the burglary of Tuttle’s residence, the defendant made no claim
that she was seeking to recover any property which had once belonged to her. When asked by the
trial court why she had gone to Tuttle’s apartment, the defendant first responded, “[b]ecause I was
high on cocaine.” When the court clarified the question by asking what she had intended to do there,
the defendant said, “Really, I can’t – I don’t know.” Then, when the trial court pointedly asked if she
had gone there to steal, the defendant admitted that such was the reason.
         Finally, in reference to the vandalism offense, the defendant stated that she had thrown a tray
while upset over her incarceration and had accidentally struck a sprinkler head. Though she
acknowledged denting the sprinkler and setting it off, the defendant said that she did not “see how
it caused any damage.” She further affirmed that she was “still coming off drugs” at the time.
         Beyond this information the defendant offered other details related to her childhood and more
recent life. For example, the defendant testified that her mother is a recovering drug addict and that
her father is an alcoholic. The defendant added that she had spent a number of years in foster care
because of her mother’s addiction but claimed to have been unaware of her mother’s drug usage until


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around the age of fifteen. The defendant stated that after completing the ninth grade, she had been
kicked out of high school for fighting. Though sent to an alternative school thereafter, the defendant
related that she had only a ninth grade education. She had then married at sixteen years of age with
parental consent. According to the defendant she had also begun actively using drugs and drinking
alcohol between the ages of twelve and thirteen through friends of her siblings. She added that at
other times friends at parties, boyfriends, etc., would give her drugs and that for five months during
1997 and 1998 she had obtained money for drugs herself by “[t]hieving, stealing from stores and
stuff.” Though she had failed a drug test during the period of time that these charges had been
pending, she maintained that she had not used narcotics for almost a year. She also stated that she
had attended AA and taken GED classes while in jail and planned to continue in both programs.
Furthermore, she related that she intended to divorce her husband and had a place to live,
transportation, and employment through her current boyfriend, Steve McCarter.
         McCarter was the only other individual called to testify at the sentencing hearing. He verified
that the defendant would have a job and a place to stay with him. Nevertheless, he also
acknowledged that she had only worked for him a short time prior to her present incarceration and
that he had initiated charges, later dismissed, against the defendant regarding the theft of his
automobile. In addition, McCarter provided a varying account of the events surrounding an old
criminal trespassing conviction of his and admitted that he had fairly recently been charged with a
domestic violence offense involving an ex-girlfriend.
         The prosecution called no witnesses. However, it did make part of the record the presentence
report and the aforementioned statement written by the defendant.
         After hearing argument by the defense and the prosecution, the trial court announced its
findings and denied her alternative sentencing. In support of this decision, the trial court found
confinement necessary to protect society because of the defendant’s history of criminal conduct. The
court also noted that the defendant had committed one group of offenses while she was on bond for
the other and had committed yet another offense while incarcerated. Though acknowledging the
“terrible” aspects of the defendant’s childhood, the court noted that the defendant’s brother, who had
been represented as a hard-working, stable individual, had grown up in the same situation. The court
further remarked that “there comes a point in time where you’ve got to make decisions to do
something different” and indicated that the defendant did not appear to be amenable to rehabilitation
at this point in her life. As an illustration of this point, the trial court added,

        You were arrested for aggravated assault and theft of services. You kept doing the
        wrong thing after that, by being – by committing two burglaries. You were put in jail
        for the burglaries. You kept doing the wrong thing by committing the vandalism. You
        finally bonded out and you kept doing the wrong thing by using drugs, as evidenced
        by this positive drug screen in the spring – or in May of 2000. Then you pled guilty
        and still kept doing the wrong thing and ran off and didn’t even come back for the
        sentencing.
        And I’m sorry to come to this conclusion – and there aren’t many 20-year-olds who
        come in here that I sentence to the Department of Corrections. But the only time that
        you stop making these bad decisions and doing these wrong things is when you got
        put in jail and didn’t get out.


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                                 Denial of Alternative Sentencing

        Through her sole issue the defendant avers that the trial court erred in denying her some form
of alternative sentencing. “When reviewing sentencing issues . . . , the appellate court shall conduct
a de novo review on the record of such issues. Such review shall be conducted with a presumption
that the determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s
action is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In conducting our review, we must consider a defendant’s potential for rehabilitation,
the trial and sentencing hearing evidence, the pre-sentence report, the sentencing principles, the
sentencing alternative arguments, the nature and character of the offense, the enhancing and
mitigating factors, and the individual defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -
210(b); Ashby, 823 S.W.2d at 169. We are also to recognize that the defendant bears the burden of
demonstrating that the sentence is improper. Ashby, 823 S.W.2d at 169.
        Moreover, Tennessee Code Annotated section 40-35-103 subsection (1) provides that
sentences involving confinement are to be
       based on the following considerations:
       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;
       (B) 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
       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1); see State v. Batey, 35 S.W.3d 585, 588 (Tenn. Crim. App. 2000)
(quoting same). Additionally, a trial court may consider the mitigating and enhancement factors set
out in Tennessee Code Annotated sections 40-35-113 and -114, “as they are relevant to the [section]
40-35-103(1) considerations.” Batey, 35 S.W.3d at 588; see State v. Zeolia, 928 S.W.2d 457, 461
(Tenn. Crim. App. 1996). The trial court should also consider the defendant’s potential for
rehabilitation when deciding whether an alternative sentence would be appropriate. Tenn. Code Ann.
§ 40-35-103(5); Zeolia, 928 S.W.2d at 461. This Court has further indicated that “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 both the defendant and
the public” in determining whether to grant or deny probation. State v. Ring, 56 S.W.3d 577, 586
(Tenn. Crim. App. 2001); see State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
Finally, Tennessee Code Annotated section 40-35-102(6) states that under certain circumstances a
defendant “who is 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.” Tenn. Code Ann. § 40-35-
102(6).
     As we begin our analysis, we note that though factual details of the offenses were outlined
somewhat in the sentencing hearing transcript presented to us, the record does not include a

                                                 -4-
transcript of the hearing or hearings at which the defendant entered her pleas of guilt. On numerous
occasions we have “held that failure to include the transcript of the guilty plea hearings in the record
prohibits this court from conducting a meaningful de novo review.” State v. Kevin W. Burns, No.
M1998-00449-CCA-R3-CD, 1999 Tenn. Crim. App. LEXIS 1246, at *2 (Tenn. Crim. App. at
Nashville, Dec. 15, 1999); see also, e.g., State v. Jackie R. Ellis, No. 01C01-9804-CC-00177, 1999
Tenn. Crim. App. LEXIS 347, at * 2 (Tenn. Crim. App. at Nashville, Apr. 16, 1999). Furthermore,
Tennessee Rule of Appellate Procedure 24(b) also clearly provides that the party bringing the appeal
bears the burden of providing a complete record for review of the issues presented. Tenn. R. App.
P. 24(b). Because the transcript of the guilty plea hearing including the prosecution’s statement of
the supporting facts was not included in the record before us, we find that the defendant has waived
this concern. See Kevin W. Burns, 1999 Tenn. Crim. App. LEXIS 1246, at *2-*3.
        Nevertheless, even if the issue were not waived, we find sufficient evidence in the record to
uphold the trial court’s denial. Among the above-provided findings, we note that the trial court
considered the defendant a poor risk for rehabilitation at this time. The record reflects that while on
bond for the first set of offenses committed in August of 1999, the defendant acquired a second set
of charges. The defendant also committed vandalism while incarcerated. Furthermore, in May of
2000, prior to entering her June pleas, the defendant tested positive for cocaine, marijuana, and
benzodiazepines. Though she claims to have stopped taking drugs at some point before her most
recent re-incarceration, she did not voluntarily return to face sentencing but rather was arrested on
new charges (which arose out of the alleged theft of Steven McCarter’s vehicle and were later
dismissed).
         Additionally, “[t]his Court has previously held that a defendant’s lack of candor, credibility,
and willingness to accept responsibility for [her] crime are further relevant considerations in
determining a defendant’s potential for rehabilitation.” State v. Matthew DeLoss Larsen, No.
M2000-01675-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 829, at *42 (Tenn. Crim. App. at
Nashville, Oct. 12, 2001); see also, e.g., Zeolia, 928 S.W.2d at 463; State v. Dowdy, 894 S.W.2d
301, 306 (Tenn. Crim. App. 1994). In the case presently before this Court, the defendant appears to
attempt to shift the blame for her actions onto the people with whom she was associating. For
example, she stated early in her testimony, “You know, I just started hanging out with the wrong
crowd. That’s the reason that I did all the things that I did. I wish I could take it all back, but the
peers I was around . . . .” She returned to this theme when speaking of her expulsion from high
school. She explained that she had been sent to Seymour Alternative Learning Center “[b]ecause I
was, you know, running with the wrong crowd in high school at Sevier County.” Additionally, she
tied all of the offenses to her being drunk, high, and/or coming off drugs, thereby possibly attempting
to relieve herself of some culpability once more. See Matthew DeLoss Larsen, 2001 Tenn. Crim.
App. LEXIS 829, at *43. Additional review of the record leads to other examples reflecting a lack
of credibility or candor by the defendant as with her responses to the trial court’s questions regarding
one of the aggravated burglaries. In an above-outlined exchange the defendant claimed that she did
not know what she had intended to do at Tuttle’s apartment until the trial court specifically asked
if her intent had been to steal. The defendant also told the trial court that she had been expelled from
high school in the ninth grade for fighting, but she apparently told the individual compiling the
presentence report that she had been expelled from Sevier County High School in the tenth grade for
missing too many days.

                                                  -5-
         While we sincerely hope that the defendant successfully completes her GED and continues
with effective drug and alcohol treatment, we note that the overall history available to the trial court
at the time of sentencing did not reflect well on her ability to follow through with commitments.
Beyond her failure to complete high school, her charges committed while on bond, her failure to
appear for sentencing, her positive drug test, and her apparent occasional lack of candor, the record
indicates no verifiable work history exceeding one month’s duration.
       Though additional considerations arguably also support the denial of alternative sentencing,
we find that, under the facts presented, the defendant’s apparent lack of rehabilitative potential alone
overcomes the presumption of suitability for such a sentence in this case. The defendant has failed
to demonstrate the impropriety of her sentence; thus, this issue lacks merit.
                                              Conclusion
        For the foregoing reasons, we find that the defendant waived the claim raised and that, even
if not waived, the issue does not merit relief. Accordingly, the judgment of the trial court is affirmed.



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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