         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE         FILED
                       AUGUST 1999 SESSION
                                              September 22, 1999

                                               Cecil Crowson, Jr.
                                              Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    NO. 01C01-9810-CR-00439
      Appellee,                 )
                                )    WILSON COUNTY
VS.                             )
                                )    HON. JAMES O. BOND,
GLYNNON BRADSHAW,               )    JUDGE
                                )
      Appellant.                )    (Statutory Rape - Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:

FRANK LANNOM                         PAUL G. SUMMERS
BRODY N. KANE                        Attorney General and Reporter
102 East Main Street
Lebanon, TN 37087                    LUCIAN D. GEISE
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     TOM P. THOMPSON, JR.
                                     District Attorney General

                                     ROBERT N. HIBBETT
                                     Assistant District Attorney General
                                     119 South College Street
                                     Lebanon, TN 37087-3609




OPINION FILED:



AFFIRMED AS MODIFIED



JOE G. RILEY, JUDGE
                                    OPINION


       Defendant, Glynnon Bradshaw, entered a plea of guilty to statutory rape in

the Criminal Court of Wilson County. The length and manner of service of the

sentence were left to the discretion of the trial court. After a sentencing hearing, the

trial court sentenced the defendant to two years as a Range I standard offender with

the requirement that he serve one year in split confinement followed by supervised

probation. On appeal, defendant contends

              1.     the length of his sentence is excessive;
                     and

              2.     one year of split confinement is more
                     onerous than a two-year sentence
                     ordered to be served in confinement.

We agree with defendant’s second contention and modify the term of split

confinement to six months.



                      PROCEDURAL HISTORY AND FACTS



       Defendant was charged in a one-count indictment alleging statutory rape and

pled guilty as charged. The trial court conducted a sentencing hearing in order to

determine the length and manner of service of the sentence.              Although the

sentencing hearing transcript is a part of the record, the transcript of the guilty plea

hearing is not.



       According to the pre-sentence report, the 14-year-old female victim of this

statutory rape and a 12-year-old female had been given marijuana and alcohol and

vaginally penetrated.    The defendant and Jenadiah Barnes were charged in

connection with the incident. The defendant was only charged with the statutory

rape of the 14-year-old victim, whereas Barnes was charged with regard to the 12-

year-old female.



       The only person to testify at the sentencing hearing was the probation officer.



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The probation officer testified as to defendant's prior adult convictions for the traffic

offense of failing to use a proper child restraint and the unlawful possession of

intoxicating liquor by a person under 21 years of age. The defendant also had

juvenile adjudications for the casual exchange of a controlled substance and the

unlawful possession of intoxicating liquors by a person under 21 years of age. The

probation officer also testified about the defendant's employment history, education,

cooperative attitude and conduct since the offense. There was no testimony

concerning the facts surrounding the offense. The defendant did not testify.



       The trial court found that no mitigating factors applied. The trial court,

however, applied the following enhancement factors: (1) defendant had a previous

history of criminal convictions or criminal behavior; (2) defendant was a leader in the

commission of an offense involving two or more criminal actors; and (3) the offense

involved more than one victim. See Tenn. Code Ann. § 40-35-114(1), (2), (3). The

trial court imposed the maximum two-year sentence and ordered the defendant to

serve one year in split confinement followed by supervised probation.



                              STANDARD OF REVIEW



       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).



                              LENGTH OF SENTENCE

                             A. Enhancement Factors

       Defendant contends the trial court improperly applied the enhancement


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factors. As to defendant’s previous criminal history and convictions, the trial court

properly considered the two adult misdemeanor convictions. However, the two

juvenile adjudications were improperly considered. For offenses committed after

July 1, 1995, juvenile adjudications may only be considered if they qualify under

Tenn. Code Ann. § 40-35-114(20). State v. William Jason McMahan, C.C.A. No.

03C01-9707-CR-00262, Knox County (Tenn. Crim. App. filed March 31, 1999, at

Knoxville). Only juvenile adjudications that would constitute a felony if committed

by an adult may be considered under Tenn. Code Ann. § 40-35-114(20). Neither

of the two juvenile adjudications would be a felony if committed by an adult.



       Defendant asserts the trial court improperly applied the remaining two

enhancement factors; namely, (1) the defendant was the leader in the commission

of the offense; and (2) the offense involved more than one victim. See Tenn. Code

Ann. § 40-35-114(2), (3). The applicability of these enhancement factors depends

upon the facts and circumstances of the offense. Although the pre-sentence report

is in the record, the transcript of the guilty plea is not. Facts concerning the offense

were in all probability stated at the time of the plea. See Tenn. R. Crim. P. 11(f).

We “will not speculate what the missing portions of the record may or may not

reveal.” State v. Ricky Dale Keen, C.C.A. No. 01C01-9802-CR-00074, Sumner

County, slip op. at 4 (Tenn. Crim. App. filed January 19, 1999, at Knoxville), perm.

to app. denied (Tenn. June 21, 1999). We must presume that the absent transcript

would have supported the trial court’s determination. Id. at 3; State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991). Thus, defendant’s assertion that the two

enhancement factors were improperly applied is without merit.



                               B. Mitigating Factors

       Defendant also asserts the trial court should have considered the following

mitigating factors: (1) the lack of a significant criminal history; (2) failure to commit

criminal acts since the commission of this offense; and (3) cooperation with the

police department. Based upon the record, we find no error in the trial court’s


                                           4
rejection of these alleged mitigating factors.



       We conclude the length of the sentence is proper even though the trial court

improperly considered the two juvenile adjudications.



                              SPLIT CONFINEMENT



       Defendant contends the trial court erred by imposing one year of split

confinement for a two-year sentence. Specifically, he alleges the one year of split

confinement is more onerous than a flat two-year sentence ordered to be served in

confinement. We agree with defendant’s contention.



       We recognize that a defendant receiving probation may ordinarily be required

to serve up to one year in the local jail in continuous confinement followed by

probation.   Tenn. Code Ann. § 40-35-306(a). However, inmates with felony

sentences of two years or less “shall have the remainder of their original sentence

suspended upon reaching their release eligibility date” unless the district attorney

general files a petition requesting denial and establishes at a hearing that defendant

committed disciplinary violations while in the institution. Tenn. Code Ann. § 40-35-

501(a)(3), (6). This Court has previously ruled that the period of time ordered to be

served in split confinement may not exceed the defendant’s release eligibility date.

State v. John W. Hill, C.C.A. No. 01C01-9802-CC-00072, Franklin County (Tenn.

Crim. App. filed February 25, 1999, at Nashville). The release eligibility date for a

Range I standard offender receiving a two-year sentence is 7.2 months less certain

sentence credits. Tenn. Code Ann. § 40-35-501(c).



       Based upon the foregoing, the length of defendant’s split confinement for the

two-year sentence may not exceed 7.2 months less certain credits. Accordingly, we

set the length of split confinement at six months.




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                                CONCLUSION



      The sentence of the trial court is MODIFIED to reflect six months to be

served in split confinement. The sentence is AFFIRMED in all other respects.



                                              ___________________________
                                              JOE G. RILEY, JUDGE




CONCUR:


________________________________
THOMAS T. WOODALL, JUDGE



________________________________
L. T. LAFFERTY, SENIOR JUDGE




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