        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs January 18, 2012

                 STATE OF TENNESSEE v. KENDRICK MILES

                   Appeal from the Circuit Court for Rutherford County
                             No. F-65756 Don R. Ash, Judge



                   No. M2011-01349-CCA-R3-CD - Filed April 18, 2012


Appellant, Kendrick Miles, pled guilty in the Rutherford County Circuit Court to one count
of aggravated assault, a Class C felony. Pursuant to his plea agreement, the trial court
sentenced Appellant as a Range I, standard offender to four years. The trial court held a
sentencing hearing specifically for the purpose of addressing Appellant’s request for
alternative sentencing. The trial court denied Appellant’s request and ordered Appellant to
serve the sentence in incarceration. On appeal, Appellant argues that the trial court erred in
denying an alternative sentence. After a thorough review of the record, we conclude that the
trial court considered the pertinent sentencing guidelines and principles and properly denied
Appellant’s request for alternative sentencing. Therefore, we affirm the judgment of the trial
court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Kendrick Miles.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; William Whitesell, District Attorney General; and Jude Santana, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                   Factual Background

       On June 1, 2010, Appellant had an altercation with Randall Matthews in a parking lot.
When the altercation was over, both Appellant and Mr. Matthews went to their vehicles,
which were parked across the parking lot from one another. When Appellant returned to his
vehicle, he retrieved a nine-millimeter pistol and fired three shots at Mr. Matthews. The
bullets struck Mr. Matthews’s vehicle, but Mr. Matthews himself was not hit. Shortly
thereafter, officers with the Smyrna Police Department located Appellant’s vehicle and
conducted a traffic stop. The owner of the vehicle, Lakisha Duncan, gave the officers
consent to search. As a result of the search, officers recovered a nine-millimeter Kel-Tec
pistol from under the front passenger seat. Appellant was taken to the Smyrna Police
Department and questioned.

       On January 5, 2011, the Rutherford County Grand Jury indicted Appellant for one
count of attempted murder, one count of aggravated assault, and one count of felony reckless
endangerment. On March 28, 2011, Appellant pled guilty to one count of aggravated assault.
Pursuant to the plea agreement, the remaining counts in the indictment were dismissed, and
Appellant was sentenced as a Range I, standard offender to four years.

      On May 16, 2011, the trial court held a sentencing hearing solely for the purpose of
determining the manner in which Appellant would serve his sentence. The trial court
addressed Appellant and made the following ruling from the bench at the sentencing hearing:

          Sir, first of all, there’s a number of factors I’m supposed to look at in
          making this determination. One, is the crime violent. Shooting
          someone’s car or shooting at them is violent. Secondly, do you have a
          long history of criminal convictions or criminal behavior. While many
          of them are . . . driving on license suspended, I do have that domestic
          assault conviction. Then there’s some other factors I’m to consider.
          Namely about are there other instances of similar offenses. There’s no
          proof of that. I don’t see that it was for gain. You didn’t lead someone
          else to crime. Have there been less restrictive than confinement, have
          you been given other opportunities for probation. You have. Based
          upon all that, I’m going to find that you’re not a good candidate for
          probation and order you to serve this sentence.

Appellant filed a timely notice of appeal.



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                                          ANALYSIS

        On appeal, Appellant argues that the trial court erred in denying his request for an
alternative sentence. The State argues that Appellant waived review of his sentence by
failing to include a transcript of Appellant’s guilty plea hearing in the record, and that if
Appellant did not waive review, the trial court properly sentenced Appellant.

        We first address the State’s contention that Appellant has waived review by failing
to include a transcript of Appellant’s guilty plea hearing. As a general rule, a defendant
appealing from a trial court bears the burden of preparing the record for appeal. Failure to
prepare an adequate record leads to a presumption that the trial court’s rulings are correct.
See Tenn. R. App. P. 24(b); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
In cases wherein a defendant pleads guilty, the guilty plea hearing is the equivalent of a trial,
and “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). This is especially true when the trial court’s sentencing decision is based
heavily on the facts and circumstances of the offense. However, this is not always the case.
Here, the trial court’s decision of whether to grant or deny Appellant’s request for alternative
sentencing relied heavily on Appellant’s criminal record and history with alternative
sentencing. Moreover, the facts of the particular crime that the trial court did consider were
presented at the sentencing hearing and are evident in the record. Therefore, we conclude
that the record is sufficient to enable us to review the trial court’s decision.

       “When reviewing sentencing issues . . . the appellate court shall conduct a de novo
review on the record of such issues. Such review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A.
§ 40-35-401(d). “However, the presumption of correctness which accompanies the trial
court’s action 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). In conducting our review, we must consider the
defendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the pre-
sentence report, the sentencing principles, sentencing alternative arguments, the nature and
character of the offense, the enhancing and mitigating factors and the defendant’s statements.
T.C.A. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also recognize that
the defendant bears “the burden of demonstrating that the sentence is improper.” Ashby, 823
S.W.2d at 169.

      With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) provides as follows:



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          In recognition that state prison capacities and the funds to build and
          maintain them are limited, convicted felons committing the most severe
          offenses, possessing criminal histories evincing a clear disregard for the
          laws and morals of society, and evincing failure of past efforts at
          rehabilitation shall be given first priority regarding sentencing involving
          incarceration. . . .

T.C.A. § 40-35-102(5).
        A defendant who does not fall within this class of offenders “and who is an especially
mitigated or standard offender convicted of a Class C, D, or E felony, should be considered
a favorable candidate for alternative sentencing options in the absence of evidence to the
contrary. . . . A court shall consider, but is not bound by, the advisory sentencing guideline
in this subdivision.” T.C.A. § 40-35-102(6); see also State v. Carter, 254 S.W.3d 335, 347
(Tenn. 2008). Furthermore, with regard to probation, a defendant whose sentence is ten
years or less is eligible for probation. T.C.A. § 40-35-303(a).

        However, all offenders who meet the criteria for alternative sentencing are not entitled
to relief; instead sentencing issues must be determined by the facts and circumstances of each
case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v.
Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is a favorable candidate for
alternative sentencing under Tennessee Code Annotated section 40-35-102(6), a trial court
may deny an alternative sentence because:

          (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; . . . .

T.C.A. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial
court should also consider Tennessee Code Annotated section 40-35-103(5), which states,
in part, “[t]he potential or lack of potential for the rehabilitation or treatment of a defendant
should be considered in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). The trial court may consider a defendant’s untruthfulness and lack of candor as they
relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289 (Tenn.
Crim. App. 1999); see also State v. Bunch, 646 S.W.2d 158, 160-61 (Tenn. 1983); State v.



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Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996); State v. Williamson, 919 S.W.2d 69,
84 (Tenn. Crim. App. 1995); Dowdy, 894 S.W.2d at 305-06.

        Appellant pled guilty to one count of aggravated assault, a Class C felony, and was
sentenced to less than ten years. Therefore, he is eligible for alternative sentencing, including
probation. See T.C.A. § 40-35-102(6); Carter, 254 S.W.3d at 347. In addition, we point out
that the above considerations are advisory only. See T.C.A. § 40-35-102(6).

       We have reviewed the record on appeal and find that the trial court considered the
sentencing guidelines and principles and all pertinent facts in the case. Therefore, there is
a presumption of correctness in the findings of the trial court. The bases upon which the trial
court denied alternative sentencing were primarily the fact that the crime was violent and, at
the time of the crime, Appellant was on probation for another crime of violence. The trial
court relied on this fact to find that Appellant had failed to successfully complete a previous
attempt at alternative sentencing.

        We acknowledge that Appellant does not appear to have an extensive criminal history.
However, the violent nature of the crime at issue in this case, and the fact that Appellant was,
at the time of the crime, on probation for another violent offense, demonstrates a disrespect
for the safety of others, as well as a disrespect for the laws of the State of Tennessee.
Appellant has been given a chance at probation, and he was unable to meet the conditions
of this alternative sentence. This fact alone is sufficient to deny Appellant’s request for
alternative sentencing. See State v. Elam, 7 S.W.3d 103, 108 (Tenn. Crim. App. 1999). We
agree with the trial court’s assessment that Appellant is not a good candidate for alternative
sentencing. Therefore, we conclude that the trial court’s denial of alternative sentencing is
supported by the record.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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