         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

             STATE OF TENNESSEE v. WILLIAM CARTWRIGHT

                 Direct Appeal from the Circuit Court for Sequatchie County
                          No. 4169    Thomas W. Graham, Judge



                  No. M2004-00268-CCA-R3-CD - Filed December 15, 2004


Defendant, William Cartwright, pled guilty to one count of attempt to manufacture
methamphetamine, a Class D felony. Pursuant to the plea agreement, Defendant received a sentence
of three years as a Range I standard offender with the manner of service of his sentence to be
determined by the trial court. After a sentencing hearing, the trial court ordered Defendant to serve
his sentence in confinement. Defendant appeals, arguing that the trial court erred in denying him
alternative sentencing. We affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, William Cartwright.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                            OPINION

        The record before us does not include a transcript of Defendant’s guilty plea submission
hearing, and we are, therefore, precluded from conducting a de novo review of the nature and
circumstances of the offense other than as may be gleaned from the pre-sentencing report and the
limited testimony presented at the sentencing hearing. See Tenn. Code Ann. § 40-35-210(b)(4).
This Court must presume that the trial court ruled correctly when presented with an inadequate
record on appeal. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). The appealing
party bears the burden of preparing a complete and adequate record for the issues presented on
appeal. See Tenn. R. App. P. 24(b). Nevertheless, we will review the record that is available in this
appeal.
         Defendant’s daughter, Lora Cartwright, testified at the sentencing hearing that her father was
first introduced to methamphetamine about two or three years prior to the hearing by Gail Stewart,
a woman with whom Defendant lived for a period of time. Ms. Cartwright said that Defendant no
longer lived with Ms. Stewart but admitted that Ms. Stewart would come by the house “ever[y] now
and then.” Ms. Cartwright agreed that she had not seen anything that would lead her to believe that
Defendant was taking methamphetamine any more than once every three or four weeks.

        Ms. Cartwright agreed that Defendant’s bond for the current offenses was revoked because
he failed to make a court appearance but explained that Defendant thought he was supposed to
appear in court in the afternoon rather than the morning. Ms. Cartwright said that Defendant
currently cared for her son while she worked, but was not otherwise employed because he suffered
from a bad back. She stated that Defendant had never participated in a drug rehabilitation program
because he did not have insurance.

        According to the pre-sentencing report Defendant has four prior misdemeanor convictions
including a conviction in 1996 for simple possession of marijuana. He was sentenced to eleven
months, twenty-nine days for his drug conviction, all of which was suspended, and Defendant placed
on probation. In 1973, Defendant was convicted of two counts of third degree burglary. He was
sentenced to four years, eleven months, twenty-nine days in the Tennessee Department of Correction
for each conviction.

        Defendant admitted in the pre-sentencing report that he had been taking methamphetamine
about five years but said that he gave the drug up because he could not afford it. Defendant later
admitted that he had taken methamphetamine about three weeks prior to the interview.

        When a defendant appeals the manner of service of a sentence imposed by the trial court, this
Court conducts a de novo review of the record with a presumption that the trial court’s
determinations are correct. Tenn. Code Ann. § 40-35-401(d). However, the presumption of
correctness 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). The burden is on the appealing party to show that the sentence is improper. Tenn.
Code Ann. § 40-35-401(d), Sentencing Commission Comments. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately supported in
the record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a
different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        Because Defendant was convicted as a Range I standard offender of a Class D felony, he is
entitled to the statutory presumption favoring alternative sentencing. Tenn. Code Ann. §§ 40-35-
102(5) and (6). When determining if incarceration is appropriate, a trial court should consider
whether (1) confinement is needed to protect society by restraining a defendant who has a long
history of criminal conduct, (2) confinement is needed to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence to people likely to


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commit similar offenses, or (3) less restrictive measures than confinement have frequently or recently
been applied unsuccessfully to the defendant. Ashby, 823 S.W.2d at169 (citing Tenn. Code Ann. §
40-35-103(1)(A)-(C)). The trial court may also consider the mitigating and enhancement factors set
forth in Tennessee Code Annotated sections 40-35-113 and -114. Id. § 40-35-210(b)(5); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). In addition, a trial court should consider
a defendant’s potential or lack of potential for rehabilitation when determining if an alternative
sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); Boston, 938 S.W.2d at 438.

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentencing report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or enhancement factors; (6) any statement that the defendant made on his own
behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210; see Ashby, 823 S.W.2d at 168. Again, the failure to include a transcript of the guilty plea
hearing in the record on appeal prohibits this Court’s conducting a full de novo review, and that leads
to a presumption that the trial court’s decision is correct. State v. Keen, 996 S.W.2d 842, 844 (Tenn.
Crim. App. 1999).

        Defendant argues that the record does not support a finding that any of the factors enumerated
in Tennessee Code Annotated section 40-35-103(1)(A)-(C) are applicable, and a sentence of
confinement was thus inappropriate. The trial court, while mentioning the need to avoid
depreciating the seriousness of the offense, placed little weight on this factor, observing that all
offenses embodied an element of seriousness. Although Defendant argues that he does not have a
long history of criminal conduct, the evidence established that he has two prior felony convictions
and four misdemeanor convictions, and the misdemeanor convictions were all related to substance
and alcohol abuse. Moreover, Defendant admitted that he had continued to use methamphetamine
even after being indicted for manufacture of the drug. Furthermore, the pre-sentencing report
includes the report of an officer who participated in the search of Defendant’s residence, which led
to these charges. When the law enforcement agents arrived, Defendant fled the premises and ran
“into the mountains” and eluded the agents. This weighs heavily against Defendant’s amenability
to rehabilitation.

         Defendant was granted probation in connection with his most recent conviction in 1996.
Although the record does not indicate that Defendant had any problems successfully completing the
terms of his probation, the trial court observed that his probated sentence was ultimately
unsuccessful because it did not deter Defendant from continuing to use drugs or encourage him to
seek a drug rehabilitation program. In addition, the trial court found that Defendant’s continued use
of methamphetamine demonstrated a lack of potential for rehabilitation. Tenn. Code Ann. § 40-35-
103(5); see State v. Bottoms, 87 S.W.3d 95, 105 (Tenn. Crim. App. 2001)(The defendant’s inability
to refrain from illegal use of drugs was properly considered by the trial court as demonstrating a lack
of potential for rehabilitation.)

       The trial court found that


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       [Defendant] has a drug problem now that he has not gotten under control or he
       certainly wouldn’t be using methamphetamine within [the] last few weeks, so we
       know he still has the problem which means he’s going to continue to violate the law
       by getting around the stuff any chance he can. Hopefully, he wouldn’t manufacture,
       but if he wants it he’ll be buying it and possessing it and all that sort of thing. If he’s
       incarcerated he can’t do that for that period of time, which might be of benefit to him.
       Of course, he ought to get some drug treatment, I suppose, but they can do that also.
       I think all things considered in this case with the record that he has and that fact that
       he did get a probation even relatively recently in a drug offense, that incarceration
       probably is the best thing.

        Based on our review of the available record, and the fact that the transcript of the guilty plea
hearing is not included in the record, we conclude that the presumption of alternative sentencing was
sufficiently rebutted in this case and that the trial court did not err by imposing a sentence of
confinement.

                                           CONCLUSION

       The judgment of the trial court is affirmed.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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