                                                                                          09/21/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2018

                  STATE OF TENNESSEE v. DALVIN SMITH

                 Appeal from the Criminal Court for Shelby County
                    No. 15-06293       W. Mark Ward, Judge
                     ___________________________________

                           No. W2017-01915-CCA-R3-CD
                       ___________________________________

JAMES CURWOOD WITT, JR., J., concurring.

              I concur in affirming the sentences in this case, but I would rule that the
record is inadequate for a ruling on the merits, resulting in a determination that we must
presume the propriety of the trial court’s sentencing decisions. Most often, when only a
sentencing issue is raised on appeal, the appellant has pleaded guilty. In this case, the
defendant was tried and convicted by a jury. The record on appeal, however, does not
include a transcript of the trial evidence.

               In reviewing a sentence on appeal, this court is obliged to conduct a review
“on the record of the issues.” T.C.A. § 40-35-401(d). For this statutorily mandated
review to occur, the appellant must provide a full and fair record of what transpired in the
trial court, including the components relied upon by the trial court in determining the
sentence; this burden clearly rests upon the appellant. Tenn. R. App. P. 24(b). In the
present case, this burden included the obligation to present the trial transcript in the
record on appeal.

              Because the sentences in this case were imposed following a jury trial, the
trial judge was familiar with the evidence admitted at trial and obviously relied upon that
evidence in determining that the jury’s verdicts had already afforded the defendant a
measure of largess – a situation that the court believed justified harsh sentences. This
sentencing practice has been approved by this court on the basis that the nature and
circumstances of the conviction offense are exacerbated because they would have
justified a conviction of a more serious offense. See, e.g., State v. Larry J. Coffey, Jr.,
No. E2008-00087-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Knoxville, Feb. 18,
2009) (approving the denial of probation based upon “the nature and circumstances of the
offense” where the trial court noted “that the jury was lenient in its verdict of simple
assault considering that the defendant ‘beat the hell’ out of the victim” (citing State v.
Samuel D. Braden, No. 01C01-9610-CC-00457, slip op. at 15 (Tenn. Crim. App.,
Nashville, Feb. 18, 1998); State v. Steven A. Bush, No. 01C01-9605-CC-00220, slip op. at
9 (Tenn. Crim. App., Nashville, June 26, 1997); State v. Fredrick Dona Black, No.
03C01-9404-CR-00139, slip op. at 3-4 (Tenn. Crim. App., Knoxville, Apr. 6, 1995)
(noting that the trial court may consider a defendant’s enjoyment of leniency in selection
of a particular conviction offense in awarding or rejecting alternative sentencing)). Of
course, the sentencing court, whether that be the trial court or the appellate court
conducting a review, is required to consider the “evidence, if any, received at the trial,”
id. § 40-35-210(b)(1), as well as the “nature and characteristics of the criminal conduct
involved,” id. § 40-35-210(b)(4).

               The existing record does not provide an adequate substitute for the trial
record because, having presided over the trial, the trial court was privy to the nature and
characteristics of the case, while we are not. The presentence report, in describing the
offenses, merely tracks the indictment language and provides none of the factual
information underlying the charges, and the evidence presented in the sentencing hearing
does little more than that.

               I have considered whether this court should order a supplementation of the
record. Our supreme court has said that “while appellate courts have the authority to
supplement a record when necessary, Tenn. R. App. P. 24(e), we do not mean to suggest
that the Court of Criminal Appeals must or should order supplementation of the record in
every case where the appellant fails to provide” a necessary component of the trial
record. State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). “Supplementation may be
considered on a case-by-case basis and should be ordered only if the record is otherwise
inadequate to conduct a meaningful appellate review on the merits of the sentencing
decision.” Id. The court added, “If, however, the record is adequate for a meaningful
review, the appellate court may review the merits of the sentencing decision with a
presumption that the missing transcript would support the ruling of the trial court.” Id.
(emphasis added). In my view, as explained above, the record before us is not adequate
for meaningful appellate review, but the trial transcript was neither requested, prepared,
nor filed with the trial court clerk. Consequently, supplementation of the record with a
transcript that does not exist is impracticable. Given the current state of the record in this
case, we should merely presume the correctness of the sentencing decision and affirm.
See, e.g., State v. March, 293 S.W.3d 576, 591 (Tenn. Crim. App. 2008) (“In the absence
of a full and complete record revealing the issues that form the bases for the appeal, we
must presume the correctness of the trial court’s determination.”).


                                                    ________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE

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