        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs May 24, 2011

             STATE OF TENNESSEE v. JEREMY CURTIS WELLS

                    Appeal from the Circuit Court for Blount County
                        No. C-19053 David R. Duggan, Judge




                   No. E2010-02210-CCA-R3-CD - Filed July 12, 2011


The Defendant pled guilty to promoting the manufacturing of methamphetamine, a Class D
felony, with the length and manner of service for the sentence left to the discretion of the trial
court. The trial court sentenced the Defendant as a Range I, standard offender to a four-year
sentence of split confinement, with nine months to be served in the Blount County Jail and
the remainder of the sentence on enhanced supervised probation. In this appeal as of right,
the Defendant contends that the trial court erred in imposing the maximum sentence and in
determining the manner of service for his sentence. Following our review, we affirm the
judgment of the trial court. However, we remand the Defendant’s case with direction to the
trial court to correct the judgment to reflect that the Defendant is serving his nine-month
period of confinement in the Blount County Jail, not the Tennessee Department of
Correction.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal), and Raymond Mack Garner, District
Public Defender (at trial), for the appellant, Jeremy Curtis Wells.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       The Defendant, who was 28-years-old, admitted at the sentencing hearing that on July
21, 2010, his cousin asked him if he would go to Target and purchase Sudafed. The
Defendant said that his cousin intended to sell the Sudafed to someone for use in the
manufacturing of methamphetamine and give him the profits from the sale. Understanding
that any Sudafed he bought at Target and gave to his cousin would be used to manufacture
methamphetamine, the Defendant went with his cousin to Target and purchased Sudafed.
He said that when he and his cousin returned to the car with the Sudafed, they were stopped
by agents of the Drug Task Force.

       The Defendant stated that he had been living with his grandparents and working at
Sonic when he committed the instant offense. He explained that he took care of his
grandparents and would drive them to their doctor’s appointments. He admitted that he had
been using methamphetamine and that he spent approximately $100 dollars a week to
purchase the methamphetamine that he used. He said that his grandparents did not know that
he had been using methamphetamine or selling Sudafed for profit. He said that he began
drinking and using marijuana when he was a teenager but that he had only started using
methamphetamine a “couple of months” before he was arrested. He admitted that he had
continued to smoke marijuana after he started using methamphetamine but that he did not
smoke as much marijuana. He said that purchasing Sudafed for profit was the “stupidest
mistake” he had “ever made in [his] entire life.” He explained that he committed the offense
because “[b]ills were tight.”

        The Defendant admitted that he had bought and sold Sudafed with his cousin on prior
occasions. The Defendant also admitted that he had been convicted of several misdemeanors
in the past and that he was on probation when he began using methamphetamine and when
he committed the instant offense. The Defendant had received a sentence of 11 months and
29 days, suspended to probation for misdemeanor convictions of possession of marijuana,
possession of drug paraphernalia, and various driving offenses. The Defendant admitted that
he had a pending violation of probation charge because he had failed to report to his
probation officer after he was placed on probation on February 19, 2010. The Defendant also
admitted that he had received and completed a probationary sentence in 2003 for a theft of
property conviction.

        The Defendant said that while he had been given alternative sentences before, the time
he had spent in jail for this offense had opened his eyes. He explained that he would do
anything to stay out of jail. The Defendant stated that if he were given an alternative
sentence, he would continue to live with his grandparents and work at Sonic. The Defendant
said that he would focus on work and stay away from the people who used methamphetamine

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and that he believed that he could stay out of trouble. When asked what would happen if he
had the same money problems as before, the Defendant said that he would not make the same
mistake again.

       Following the presentation of the evidence and arguments by the State and defense
counsel, the trial court sentenced the Defendant to four years, the maximum sentence
possible in the Defendant’s range classification. The trial court ordered the Defendant to
serve nine months in the Blount County Jail and to serve the remainder of his four-year
sentence on enhanced supervised probation. The trial court further ordered the Defendant
to submit to “more frequent” drug screens and to complete an alcohol and drug assessment
and a mental health assessment.

      In setting the length of the Defendant’s sentence, the trial court applied the following
enhancement factors:

       (1) The defendant has a previous history of criminal convictions or criminal
       behavior, in addition to those necessary to establish the appropriate range[.]

       (13) At the time the felony was committed, one (1) of the following
       classifications was applicable to the defendant:
               (C) Released on probation[.]

Tenn. Code Ann. § 40-35-114(1), (13). In applying the criminal convictions or criminal
behavior enhancement factor to the Defendant, the trial court explained that it was
specifically considering the Defendant’s prior criminal behavior as well as his misdemeanor
convictions. The trial court also applied the following mitigating factor:

       (1) The defendant’s criminal conduct neither caused nor threatened serious
       bodily injury[.]

Tenn. Code Ann. § 40-35-113(1).

        In determining the manner of service for the Defendant’s sentence, the trial court
found that the Defendant’s potential for rehabilitation was low given his prior criminal
history and the fact that he was on probation when he committed the offense. The trial court
stated that the “risk is high that during a period of probation [the Defendant] will commit
another crime” and that it did not believe that the Defendant would abide by the terms of a
probationary sentence. The trial court also found that measures less restrictive than
confinement had been “frequently and recently” applied to the Defendant. The trial court
stated that the Defendant was “a high risk for probation.”

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                                         ANALYSIS

                                   I. Guilty plea transcript

      The record on appeal does not include the guilty plea submission hearing transcript.
The absence of the guilty plea hearing transcript is particularly important because

              [f]or those defendants who plead guilty, the guilty plea hearing
              is the equivalent of trial, in that it allows the State the
              opportunity to present the facts underlying the offense. For this
              reason, a transcript of the guilty plea hearing is often (if not
              always) needed in order to conduct a proper review of the
              sentence imposed.

State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999) (internal citations omitted).
However, we do not believe that the absence of the transcript is fatal to the appeal in this case
because the testimony submitted at the sentencing hearing and in the presentence report
presented sufficient facts surrounding the offense to which the Defendant pled guilty.
Furthermore, the State does not argue that the absence of the guilty plea transcript is fatal to
the appeal in this case.

                                    II. Length of sentence

        The Defendant contends that the trial court erred in imposing the maximum possible
sentence of four years. The Defendant asserts that a sentence of three years would have been
a “more reasonable sentence” given the Defendant’s minimal criminal history and the fact
that he was “led into his criminal behavior by others.” The State responds that the fact that
it was the Defendant’s cousin’s idea to commit the crime was irrelevant. The State further
responds that imposing the maximum sentence was reasonable given the Defendant’s
continued criminal behavior and the fact that he committed a felony while on probation. The
State asserts that the trial court would have been justified in imposing a sentence of
confinement.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005).
The appealing party has the burden of showing that the imposed sentence is improper. Id.
If review of the record reflects that the trial court properly considered all relevant factors,
gave due consideration to each factor, and its findings of fact are adequately supported by
the record, this court must affirm the sentence. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991). Should the record fail to demonstrate the required considerations

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by the trial court, then appellate review of the sentence is purely de novo. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate
review, the trial court must “place on the record, either orally or in writing, what
enhancement and mitigating factors were considered, if any, as well as the reasons for the
sentence.” Tenn. Code Ann. § 40-35-210(e).

       The Defendant committed this offense on July 21, 2010; therefore, he was sentenced
under the 2005 revisions to the Criminal Sentencing Act. The Act provides that:

              (c) The court shall impose a sentence within the range of
              punishment, determined by whether the defendant is a mitigated,
              standard, persistent, career, or repeat violent offender. In
              imposing a specific sentence within the range of punishment, the
              court shall consider, but is not bound by, the following advisory
              sentencing guidelines:

                     (1) The minimum sentence within the range of
                     punishment is the sentence that should be
                     imposed, because the general assembly set the
                     minimum length of sentence for each felony class
                     to reflect the relative seriousness of each criminal
                     offense in the felony classifications; and

                     (2) The sentence length within the range should
                     be adjusted, as appropriate, by the presence or
                     absence of mitigating and enhancement factors set
                     out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2) (2006).

        The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989
Sentencing Act and the court’s findings are adequately supported by the record. Tenn. Code
Ann. § 40-35-210(d)-(f); State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An
appellate court is therefore bound by a trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles set
out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may
only review whether the enhancement and mitigating factors were supported by the record
and their application was not otherwise barred by statute. See id.



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        In conducting its de novo review with a presumption of correctness, the appellate
court must consider (1) the evidence, if any, received at the trial and sentencing hearing, (2)
the presentence 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
statutory enhancement factors, (6) any statement that the defendant made on his own behalf,
(7) the potential for rehabilitation or treatment, and (8) any statistical information provided
by the Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at
168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

       While the Defendant’s criminal history consists of misdemeanor convictions, he had
persisted in engaging in criminal behavior even after having been given probationary
sentences. Indeed, the Defendant was currently on probation when he committed the instant
offense. The Defendant admitted that he had bought and sold Sudafed with his cousin on
other occasions before he committed the instant offense. Additionally, the trial court
considered the purposes and principles of the Sentencing Act and the applicable enhancement
and mitigating factors in setting the length of the Defendant’s sentence. Accordingly, we
conclude that the trial court did not err in setting the length of the Defendant’s sentence.

                          III. Manner of service for the sentence

       The Defendant contends that the trial court’s ordering him to serve nine months of his
sentence was “unreasonable under the circumstances of his actual conduct and behavior.”
The Defendant asserts that a split confinement sentence with only 90 days to serve in the
county jail would have been more consistent with the purposes and principles of the
Sentencing Act. The State responds that the trial court’s sentencing decision was reasonable
and supported by the record.

       The Defendant was eligible for probation because the “sentence actually imposed
upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a), (b). Thus, the trial
court was required to automatically consider probation as a sentencing option. Tenn. Code
Ann. § 40-35-303(a). However, the Defendant must have established his suitability for
probation. Tenn. Code Ann. § 40-35-303(b). A defendant seeking full probation bears the
burden of showing that probation will “subserve the ends of justice and the best interests of
both the public and the defendant.” Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Among the
factors applicable to probation consideration are the circumstances of the offense; the
defendant’s criminal record, social history, and present condition; the deterrent effect upon
the defendant; and the best interests of the defendant and the public. State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978).

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       The Defendant would have been “considered as a favorable candidate for alternative
sentencing options in the absence of evidence to the contrary” because he was convicted of
a Class D felony. Tenn. Code Ann. § 40-35-102(6). In determining any defendant’s
suitability for alternative sentencing, the trial court should consider whether

       (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)(A)-(C); see also Hooper, 29 S.W.3d at 5. The trial court
shall also consider the mitigating and enhancing factors as set forth in Tennessee Code
Annotated sections 40-35-113 and -114. Tenn. Code Ann. § 40-35-210(b)(5); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). A trial court should also 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 435 at 438. Ultimately, in sentencing a defendant, a trial court should impose a
sentence that is “no greater than that deserved for the offense committed” and is “the least
severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103(2), (4).

       Here, the Defendant committed the instant felony offense while he was on probation
for drug-related misdemeanor convictions. The Defendant began using methamphetamine
while he was on probation and continued to use marijuana after having been convicted of
possession of marijuana and sentenced to probation. The Defendant also had a pending
probation violation charge for failing to report to his probation officer. Under these
circumstances, we conclude that the trial court did not err in imposing a sentence of split
confinement with nine months to serve followed by enhanced supervised probation.




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                                      CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed. However, we remand the Defendant’s case with direction to the trial court
to correct the judgment to reflect that the Defendant is serving his nine-month period of
confinement in the Blount County Jail, not the Tennessee Department of Correction.


                                           _______________________________________
                                           D. KELLY THOMAS, JR., JUDGE




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