         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 4, 2003

               STATE OF TENNESSEE v. ROBERT J. WILLIAMS

                       Appeal from the Circuit Court for Henry County
                            No. 13255    Julian P. Guinn, Judge



                     No. W2002-02366-CCA-R3-CD - Filed April 14, 2003


The defendant, Robert J. Williams, pled guilty in the Henry County Circuit Court to one count of
selling one-half gram or more of cocaine, a Class B felony, and two counts of selling less than one-
half gram of cocaine, a Class C felony. As a Range I, standard offender, he received one eight-year
sentence and two three-year sentences to be served concurrently as one year in confinement and the
remainder in a community corrections program. The defendant appeals, claiming that his sentences
are excessive. We affirm the defendant’s sentences, but we remand the case for entry of corrected
judgments.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellant, Robert J. Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         The record reflects that the defendant sold cocaine to an undercover police officer on March
23, March 27, and May 10, 2001. Nothing more is known about the facts in this case because the
defendant did not include the guilty plea hearing transcript in the record on appeal and no witnesses
testified at the sentencing hearing. According to the presentence report, the then thirty-five-year-old
defendant graduated from high school and worked for sixteen years in the lawn and landscaping
business. In the report, the defendant stated that he suffered from ulcers and back problems and that
he started using cocaine when he was twenty-eight years old. He stated that he had completed a drug
treatment program in 1990 and had not used cocaine since the early 1990’s. The report reflects that
the defendant is single and has no children. The report also shows that the defendant has prior
convictions for aggravated burglary, sexual battery, misdemeanor theft, possession of drug
paraphernalia, and a traffic offense.

         Before the sentencing hearing, the defendant requested some form of alternative sentence and
filed a list of mitigating factors for the trial court to consider. The defendant requested that the trial
court consider the following:

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

                  ...;

                  (4) The defendant played a minor role in the commission of the
                  offense;

                  ...;

                  (11) The defendant, although guilty of a crime, committed the offense
                  under such unusual circumstances that it is unlikely that a sustained
                  intent to violate the law motivated the criminal conduct; [and]

                  (12) The defendant acted under duress or under the domination of
                  another person, even though the duress or the domination of another
                  person is not sufficient to constitute a defense to the crime[.]

See Tenn. Code Ann. § 40-35-113(1), (4), (11), and (12). At the sentencing hearing, the defendant
also noted to the trial court that his pleading guilty had saved the state the expense of going to trial.
See Tenn. Code Ann. § 40-35-113(13).

        In sentencing the defendant, the trial court noted that the range of punishment for a Range
I offender is eight to twelve years for a Class B felony and three to six years for a Class C felony.
See Tenn. Code Ann. § 40-35-112(a)(2), (3). The trial court determined that enhancement factor (1),
that the “defendant has a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range,” and factor (8), that the “defendant has a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community,” applied. See Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001) (amended 2002).1
However, the trial court chose not to enhance the defendant’s sentences. The trial court stated that


         1
            The legislature’s 200 2 am endment to Tenn. Code Ann. § 40-35-114 added as the new enhancement factor (1)
that the “offense was an act of terrorism” b ut changed the existing enhan cement facto rs only in inc reasing their
designating number by one. Thus, former enhancement factor (1) is now enhancement factor (2) and factor (8) is now
factor (9).

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no mitigating factors applied and sentenced the defendant to concurrent sentences of eight years for
the selling one-half gram or more of cocaine conviction and three years for each of the selling less
than one-half gram of cocaine convictions. The trial court also ordered that the defendant serve one
year of his effective eight-year sentence in confinement with the remainder to be served in a
community corrections program.

       The defendant claims that he received an excessive sentence. Although his brief cites
extensively to statutory and case law regarding sentencing in Tennessee, the only argument he makes
in support of his claim is as follows:

                       The trial court failed to consider and review on the record
                Defendant’s Mitigating Factors. The trial court erred in sentencing
                without establishing a sufficient record to reflect evaluation of the
                required sentencing criteria. Also, the trial court sentenced Defendant
                excessively, and differently from others similarly charged, each of
                whom received sentences of 8 years, split to 180 days of confinement.
                Accordingly, Defendant requests that his case be remanded for re-
                sentencing.

The state claims that the defendant has waived the issue because his “argument consists of little more
than vague conclusory statements.” In the alternative, the state claims that the trial court properly
sentenced the defendant. We conclude that the defendant is not entitled to relief.

       Appellate 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). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence is improper. 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).

        In conducting our de novo review, we 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, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229,
236-37 (Tenn. 1986).

        Initially, we note that any evidence presented at the guilty plea hearing should be considered
in determining the appropriate sentence. See Tenn. Code Ann.§ 40-35-210(b)(1). However, the
defendant has failed to include in the record on appeal a transcript of the guilty plea hearing relating


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to his conviction. It is the duty of the defendant to prepare a fair, accurate, and complete record on
appeal to enable meaningful appellate review. T.R.A.P. 24. This court has repeatedly held that
failure to include the transcript of the guilty plea hearing in the record prohibits the court’s
conducting a meaningful de novo review of the sentence. Absent the guilty plea hearing, in which
facts are presented, we may presume that the defendant’s sentences are justified. See, e.g., State v.
Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999). In any event, the record before us supports
the trial court’s determination.

        Without any underlying facts regarding the defendant’s convictions in the appellate record,
we cannot determine whether the mitigating factors he filed before the sentencing hearing apply in
this case. Moreover, although a defendant’s saving the state the expense of a trial may be properly
applied as a mitigating factor pursuant to Tenn. Code Ann. § 40-35-113(13), in light of his prior
criminal convictions, we do not believe the trial court’s application of that factor would have reduced
the defendant’s sentences. Finally, the defendant has presented nothing to support his claim that the
trial court sentenced him differently than other defendants convicted of similar crimes.

        We note that each judgment of conviction shows that the defendant was sentenced to a term
of years in the Department of Correction (DOC) and then shows a community corrections sentence
plus one year confinement. A community corrections sentence is meant to be used instead of a
sentence to a state penal institution. See Tenn. Code Ann. § 40-36-106(e)(1). The judgments should
not reflect sentences to the DOC. Moreover, in the appropriate case, a defendant may be given as
much as one year of shock confinement as a condition of a community corrections sentence. See
Jimmy D. Johnson, No. 03C01-9602-CC-00062, Blount County (Tenn. Crim. App. Oct. 16, 1997);
see also Tenn. Code Ann. § 40-36-302(b). Thus, for the Class B felony, the defendant received an
eight-year community corrections sentence consisting of one year in confinement and seven years
in a community corrections program. For each Class C felony, he received a three-year community
corrections sentence consisting of one year in confinement and two years in a community corrections
program.

        Based upon the foregoing and the record as a whole, we affirm the sentences imposed by the
trial court, but we remand the case for entry of corrected judgments consistent with this opinion.




                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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