         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 9, 2010 Session

                STATE OF TENNESSEE v. JOHN D. BARNHART

              Direct Appeal from the Circuit Court for Robertson County
               No. 74CC3-2009-CR-421 & -446       Walter Kurtz, Judge




                  No. M2010-00737-CCA-R3-CD - Filed May 13, 2011


Appellant, John D. Barnhart, was indicted by the Robertson County Grand Jury for
aggravated assault and violation of the Sexual Offender Registration Act. Appellant pled
guilty. In conjunction with the guilty plea, Appellant received a two-year sentence as a
Range II, multiple offender for the conviction for violation of the Sexual Offender
Registration Act and a six-year sentence for the aggravated assault conviction. The manner
of service of the sentence was left to the trial court. After a sentencing hearing, the trial court
sentenced Appellant to serve his sentence in incarceration and ordered the sentences to run
consecutively. On appeal, Appellant contends that the trial court erred in denying an
alternative sentence and in ordering the sentences to run consecutively. We affirm the
judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and A LAN E. G LENN, JJ., joined.

Joe R. Johnson, II, Springfield, Tennessee, for the appellant, John D. Barnhart.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Jason White,
Assistant District Attorney General, for the appellee, the State of Tennessee.
                                         OPINION

I. Background

       The transcript of the guilty plea submission hearing is not included in the record on
appeal. See State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999) (observing that “a
transcript of the guilty plea hearing is often (if not always) needed in order to conduct a
proper review of the sentence imposed”). Therefore, the facts surrounding Appellant’s
convictions, which are minimal, may only be gleaned from the presentence report and the
testimony presented at the sentencing hearing.

      The official version of the facts contained in the presentence report provides as
follows:

       [Appellant] committed the malicious act of aggravated assault by repeatedly
       punching his 25 year old sister in the face with his fist.

       This action caused internal oral injuries and Mrs. Georgia Baker, the sister and
       victim sustained a broken jaw bone. Mrs. Baker received medical treatment
       from North Crest Medical Center for injuries sustained as a result of this
       incident. A written statement was rendered by Mrs. Baker and Photographs
       were taken.

        Additionally, Appellant was indicted for failing to report to the sex offender registry
agency within forty-eight hours of changing his primary residence “due to his conviction
[for] statutory rape in the circuit court of Robertson County.”

       The presentence report indicates that Appellant was thirty years of age at the time of
the preparation of the report and has approximately seventeen prior convictions. Appellant
has been placed on probation three times. Appellant violated all three probative sentences.

       At the hearing, Appellant’s sister and victim, Georgia Baker, testified that Appellant
was staying with her at the time of the offense. He stayed with her approximately a week and
she could tell that Appellant was “on drugs again really bad.” Mrs. Baker claimed that
Appellant had a bad addiction to crack cocaine.

       Mrs. Baker recalled that Appellant had served time in incarceration on a prior
conviction. After he was released she described Appellant’s behavior as good for about one
year, but she could tell that Appellant started using drugs after hanging out with old friends.
Mrs. Baker offered for Appellant to come stay with her for a while. She thought that this

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would help his behavior. Appellant came to stay with her and shortly thereafter took one of
her televisions and sold it to buy drugs.

       Mrs. Baker confronted her brother about the stolen television and Appellant started
screaming and throwing objects around. Appellant got on top of Mrs. Baker and repeatedly
punched her in the mouth. Appellant punched Mrs. Baker four or five times, enough to
require surgery to place a plate in the right side of her jaw. Mrs. Baker’s mouth was wired
shut for about nine-and-a-half-weeks. Mrs. Baker also suffered nerve damage to her chin.

       Despite her injuries, Mrs. Baker wanted her brother to enter a drug treatment facility.
She hoped that he would get help rather than being sentenced to incarceration. Mrs. Baker
acknowledged that Appellant’s criminal history and classification as a sex offender made it
difficult for him to qualify for a rehabilitation program.

       Appellant’s father, James Barnhart, testified at the hearing. He was present during
the assault on Mrs. Baker and actually broke up the fight. He acknowledged Appellant’s
long-standing drug addiction. He offered his support should the trial court grant an
alternative sentence. Also, Mr. Barnhart acknowledged that he had filed a police report on
his own son in which he alleged that Appellant had stolen his guns and taken his van without
permission.

       Appellant testified at the hearing. He acknowledged that his drug problems began
when he was a teenager and the “hard drug” usage began around age twenty-three. Appellant
informed the trial court that he would be accepted into Buffalo Valley for inpatient
rehabilitation if he were granted an alternative sentence.

       Appellant informed the trial court that he had previously been incarcerated for a five-
year period of time. During this time, the Department of Correction did nothing to address
Appellant’s drug addiction.

       Appellant admitted that he had other pending charges and understood that he would
be required to serve 90 days of the sentence in incarceration even if the trial court granted
an alternative sentence. Further, Appellant admitted that he had an extensive criminal
history, including a conviction for statutory rape, which he committed while on a community
corrections sentence. Appellant even admitted that he had continued to use drugs while
awaiting sentencing on these charges. However, he claimed that he went to church and
completed a drug detoxification program.




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II. Standard of Review

       On appeal, Appellant challenges the trial court’s denial of his request for alternative
sentencing. Specifically, he claims that the trial court “erred in not ordering split
confinement so that [Appellant] could attempt a drug rehabilitation program” and erred in
ordering consecutive sentencing.

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant
challenges the length, range, or manner of service of a sentence, it is the duty of this Court
to conduct a de novo review on the record with a presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This
presumption of correctness, however, “ ‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,
254 S.W.3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992);
State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

III. Analysis

       Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a
Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for
alternative sentencing. Our sentencing law now provides that a defendant who does not
possess a criminal history showing a clear disregard for society’s laws and morals, who has

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not failed past rehabilitation efforts, and who “is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” T.C.A. §
40-35-102(5), (6). Additionally, a trial court is “not bound” by the advisory sentencing
guidelines; rather it “shall consider” them. Id. § 40-35-102(6).

        As of June 7, 2005, no longer is any defendant entitled to a presumption that he or she
is a favorable candidate for probation. Carter, 254 S.W.3d at 347. As a Range II, multiple
offender, Appellant is not considered a favorable candidate for alternative sentencing. See
T.C.A. § 40-35-102(6). Nonetheless, Appellant remains eligible for an alternative sentence
because his sentences were ten years or less and the offenses for which he was convicted are
not specifically excluded by statute. T.C.A. §§ 40-35-102(6), -303(a).

      In determining whether to deny alternative sentencing and impose a sentence of total
confinement, the trial court must consider if:

       (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.

T.C.A. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles of
sentencing reflect that the sentence should be no greater than that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for
which the sentence is imposed. T.C.A. § 40-35-103(2), (4). The court should also consider
the defendant’s potential for rehabilitation or treatment in determining the appropriate
sentence. T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994).

       As previously noted, a transcript of the guilty plea submission hearing was not
included in the record and thus the nature and circumstances of the criminal conduct may be
gleaned only from the brief “official version” contained in the presentence report and the
testimony at the sentencing hearing. Appellant’s failure to include the transcript of the guilty
plea hearing in the record normally would preclude this Court from conducting a full de novo
review of the sentence under Tennessee Code Annotated section 40-35-210(b). See State v.

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Bennett, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990); State v. Shatha Litisser Jones, No.
W2002-02697-CCA-R3-CD, 2003 WL 21644345, at *3 (Tenn. Crim. App., at Jackson, July
14, 2003).

       An appellate court’s “de novo review on the record of sentencing issues requires [the
appellate court] to consider evidence presented at the guilty plea hearing.” State v. Cora
Fierbaugh, No. E2008-00707-CCA-R3-CD, 2009 WL 1659368, at *2 (Tenn. Crim. App.,
June 12, 2009), perm. to app. denied Oct. 26, 2009 (citing Tenn. Code Ann. § 40-35-
210(b)(1), -401(d)). When the evidence presented at the guilty plea hearing or portions of
the record upon which a party relies are not before the appellate court, the court must
presume the trial court’s determinations were correct. State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988).

       Despite the fact that we presume the trial court’s determinations in this case are
correct, there is more than ample evidence to support the trial court’s rulings. Appellant has
a record of criminal convictions dating back twelve years to when he was eighteen years old,
including at least eight misdemeanors and six felonies. He had previously had his probation
revoked three times. Appellant’s father testified that Appellant took his father’s guns and
van without permission because Appellant was again using illegal drugs approximately eight
weeks prior to the sentencing hearing.

       Based upon the entire record available, it is clear that consecutive sentences of
incarceration were justified in this case.

                                      CONCLUSION

       After a thorough review, we affirm the judgments of the trial court.


                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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