         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 24, 2002

                  STATE OF TENNESSEE v. WILLIAM C. SMITH

                         Appeal from the Circuit Court for Sevier County
                              No. 7972    Rex Henry Ogle, Judge



                                   No. E2001-02339-CCA-R3-CD
                                         August 28, 2002

The Defendant, William C. Smith, pled guilty to burglary, a class D felony, and theft under $500,
a class A misdemeanor. Pursuant to the Defendant’s plea agreement, he was sentenced as a Range
I standard offender with the sentences to run concurrently. The parties left the length, method, and
manner of service to the trial judge’s discretion. After a sentencing hearing, the trial court sentenced
the Defendant to four years in the Department of Correction for the burglary and a concurrent
sentence of 11 months and 29 days at 75% for the misdemeanor theft. The Defendant now appeals
as of right. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY,
JJ., joined.

James Greenlee, Sevierville, Tennessee, for the appellant, William C. Smith.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Al Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION


        The trial court ordered that the Defendant serve an effective sentence of four years in
confinement following his pleas of guilty to burglary and misdemeanor theft. The sole issue raised
by the Defendant in this appeal as of right is whether the trial court erred by denying him some form
of an alternative sentence. We conclude that it did not.

         We note at the outset that “[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.” State v. Keen, 996 S.W.2d 842, 843 (Tenn. Crim. App. 1999) (quoting State v. Robert
Bryant Rhodes, No. 03C01-9405-CR-00174, 1995 Tenn. Crim. App. LEXIS 607, at *4 (Knoxville,
July 20, 1995)). “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 as contemplated by Tennessee
Code Annotated section 40-35-210.” Keen, 996 S.W.2d at 844. It is the responsibility of the
Appellant to provide this Court with an adequate record which conveys a fair, accurate, and complete
account of what transpired in the trial court with respect to the issues that form the basis of the
appeal. See Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). The failure
to do so results in a waiver of such issues and a presumption that the decision of the trial court was
correct. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). In this case, the
Defendant failed to provide this Court with a transcript of the guilty plea hearing or a recitation of
any of the facts underlying the offenses to which he pled guilty. Only the most basic facts underlying
the two convictions may be gleaned from the indictment. Therefore, we will proceed to review the
Defendant’s challenge of his sentence, though our efforts at a meaningful review have been
frustrated by his failure to supply us with an adequate record.

        The Sevier County Grand Jury returned a two-count indictment charging the Defendant with
theft of property under $500, a class A misdemeanor, and burglary, a class D felony. In count one
of the indictment, the Defendant was charged with stealing property valued under $500 from
Outback Leather store between the months of July and September of 1999. In count two of the
indictment, the Defendant was charged with the unauthorized entry of the Mountain Meadows Resort
office with the intent to commit theft in February of 1999.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption 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).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and 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) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have



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preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        A defendant who “is an especially mitigated or standard offender convicted of a Class C, D,
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence
of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6); State v. Lane, 3 S.W.3d 456, 462
(Tenn. 1999). Where a defendant is entitled to the statutory presumption of alternative sentencing,
the State has the burden of overcoming the presumption with evidence to the contrary. See State v.
Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Guidance regarding what constitutes “evidence to the
contrary” which would rebut the presumption of alternative sentencing can be found in Tennessee
Code Annotated section 40-35-103(1), which sets forth the following considerations:
        (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[.]

See Hooper, 29 S.W.3d at 5; State v. Ashby, 823 S.W.2d 166, 170 (Tenn. 1991).

        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. See Tenn. Code Ann. § 40-35-103(2), (4). The
court should also consider the potential for rehabilitation or treatment of the defendant in
determining the appropriate sentence. See id. § 40-35-103(5).

        The presentence report reflects that, at the time of sentencing, the Defendant was thirty-four
years old, married, and the step-father of two children. He stated that he graduated from high school
in 1985 and received a bachelors degree from Auburn University in 1990. Although at the time of
sentencing he was employed as an installer for a heat and air company, the presentence report shows
that the Defendant misrepresented the length of his terms of employment for his two prior jobs as
a server in restaurants. The Defendant has a lengthy history of drug and alcohol use. According to
the report, he first began using alcohol and marijuana at the age of seventeen. Furthermore, he
admitted to using marijuana and ecstasy while the present charges were pending. At the time of his
interview for the presentence report, the Defendant was attending therapy for emotional problems
as well as Narcotics Anonymous meetings. The Defendant’s criminal history includes convictions
for forgery and rape.

        At the conclusion of the sentencing hearing, the trial court ordered that the Defendant serve
his sentence in the Department of Correction. The judge based his decision on the Defendant’s
“prior record for Rape and another theft type offense.” Furthermore, the Defendant failed to appear


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at the original sentencing hearing, but the court did not place as much weight on that factor because
it occurred shortly after his wife suffered a miscarriage. Nevertheless, by not appearing at the
hearing, the Defendant “violated a term of [his] release into [the] community.” Finally, the trial
court gave consideration to “the fact that [he] did use drugs while [he was] out on release in [the]
community and involved [him]self in other illegal activity.”1

         A criminal defendant challenging a trial court’s sentencing decision has the burden of
establishing that his or her sentence is improper. See Tenn. Code. Ann. § 40-35-401, Sentencing
Commission Comments; see also Ashby, 823 S.W.2d at 169. The Defendant has not met his burden
in this case. The proof adduced at the sentencing hearing established that the Defendant has prior
convictions for rape and forgery, he failed to appear at the original sentencing hearing, and he has
engaged in additional criminal conduct, the use of illegal drugs, while the instant charges were
pending. Taken in the aggregate, these circumstances are sufficient to justify the trial court’s denial
of alternative sentencing.

         The judgment of the trial court is affirmed.



                                                                ___________________________________
                                                                DAVID H. WELLES, JUDGE




         1
         The Defendant was arrested for joyriding and criminal trespass while on bond for the instant offenses, but both
charges were subsequently dismissed.

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