        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs August 3, 2010

                 STATE OF TENNESSEE v. WARREN PARKER

               Direct Appeal from the Criminal Court for Shelby County
                      No. 06-08080    John T. Fowlkes, Jr., Judge


               No. W2009-02578-CCA-R3-CD - Filed December 7, 2010


The defendant, Warren Parker, appeals the trial court’s denial of any form of alternative
sentencing. The defendant entered a guilty plea to three counts of aggravated assault, a Class
C felony, and one count of evading arrest, a Class A misdemeanor. He was sentenced to
concurrent six year sentences for the Class C felonies and to a concurrent eleven-month,
twenty-nine-day sentence for the Class A misdemeanor. After careful review, we affirm the
trial court’s judgments that deny alternative sentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and J.C. M CL IN, JJ., joined.

Mark Renken (on appeal) and Lorna McClusky and Claiborne H. Ferguson (at trial),
Memphis, Tennessee, for the appellant, Warren Parker.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        The events underlying this case arose after an incident near a McDonald’s restaurant
located at 6048 Stage Road in Shelby County, Tennessee. The defendant got into an
altercation with the victims, left to go to his residence where he retrieved a .270 caliber rifle,
and then returned to the scene. The defendant fired three shots at the victims as they tried
to leave. He struck a juvenile victim twice and another victim once with his shots. Traveling
in excess of eighty miles per hour while driving through neighborhood streets, the defendant
fled the scene to avoid police officers. The defendant eventually lost control of his vehicle
and struck a patrol car. The defendant was taken into custody, and a search incidental to
arrest revealed that he was in possession of 3.3 grams of marijuana. The defendant was
advised of his Miranda rights and acknowledged that he retrieved the weapon, returned to
the scene, and fired three shots at the victims.

        The trial court conducted a sentencing hearing on November 12, 2009, where the
defendant testified that he would be a good candidate for probation. He testified that he had
just turned eighteen years of age at the time of the crimes, was self-employed, and planned
to attend vocational school. His version of events suggested that the victims initially
accosted him while he was in the drive-thru lane at McDonald’s. The defendant testified that
he was exiting the parking lot when the victim’s car pulled out from a parking spot and hit
his car. He claimed that the victims tried to drag him from his vehicle, but his girlfriend
drove them to safety.

       The defendant testified that the victims chased him to his parent’s driveway before
they left. He went inside the home, retrieved a deer rifle, loaded the gun, and returned to
McDonald’s. He arrived there at approximately 1:00 a.m., when he saw the victim’s car
charging him. He claimed that he fired in self-defense. The defendant testified that he fled
when he saw the police stop the victim’s car. He refused to stop for police and got into an
accident. He claimed that he did not intentionally hit the officer’s car and was ashamed of
what transpired. He acknowledged that he had consumed beer and smoked marijuana on the
night of the crimes. He admitted that he should have phoned the police but claimed he was
not “thinking straight.” His girlfriend tried to talk him out of getting the rifle and tried to get
him to stop while he was pursued by the police. He also acknowledged that he had been
arrested for vandalism while on bond for the underlying crimes but insisted that it was a
misunderstanding.

        The defendant’s father testified that he and his wife had given the rifle to the
defendant as a gift because they were avid hunters. The rifle was a bolt-action deer rifle. He
testified that the defendant had become withdrawn since the incident and still wanted to
attend school. He said that his son did not wake him on the night of the crime when he came
to retrieve the rifle.

       The trial court sentenced the defendant to concurrent six-year sentences for the three
convictions for aggravated assault and to a concurrent eleven-month, twenty-nine-day
sentence for evading arrest.

                                            Analysis

       On appeal, the defendant argues that the trial court erred in denying probation.

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Specifically, the defendant contends that the trial court did not assign proper weight to the
factors presented to mitigate his sentence. This court’s review of the sentence imposed by
the trial court is de novo with a presumption of correctness. T.C.A. § 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. Pettus,
986 S.W.2d 540, 543 (Tenn. 1999). 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).

       The burden is upon the appealing party to show that the sentence is improper. T.C.A.
§ 40-35-401(d), Sentencing Comm’n Comments. In conducting our review, we are required,
pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the following
factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
       [t]he presentence report; (3) [t]he principles of sentencing and arguments as
       to sentencing alternatives; (4) [t]he nature and characteristics of the criminal
       conduct involved; (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in [sections] 40-35-113 and 40-35-114;
       and (6) [a]ny statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to
use alternatives to incarceration. In determining if incarceration is appropriate, a trial court
may consider the need to protect society by restraining a defendant having a long history of
criminal conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit similar
offenses, and whether less restrictive measures have often or recently been unsuccessfully
applied to the defendant. T.C.A. § 40-35-103(1); see also State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).

       A court may also consider the mitigating and enhancing factors set forth in Tennessee
Code Annotated sections 40-35-113 and 114, as they are relevant to the section 40-35-103
considerations. T.C.A. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn.
Crim. App. 1996). Additionally, a court should consider the defendant’s potential or lack of
potential for rehabilitation when determining if an alternative sentence would be appropriate.
T.C.A. § 40-35-103(5); Boston, 938 S.W.2d at 438.

       There is no mathematical equation to be utilized in determining sentencing
alternatives. Not only should the sentence fit the offense, but it should fit the offender as

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well. T.C.A. § 40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App.
2000). Indeed, individualized punishment is the essence of alternative sentencing. State v.
Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be
determined on a case-by-case basis, tailoring each sentence to that particular defendant based
upon the facts of that case and the circumstances of that defendant. State v. Moss, 727
S.W.2d 229, 235 (Tenn. 1986).

        Pursuant to the 2005 revisions to the Sentencing Act, a defendant is eligible for
probation if the sentence received by the defendant is ten years or less, subject to some
statutory exclusions. T.C.A. § 40-35-303(a) (2006). An especially mitigated or standard
offender convicted of a Class C, D, or E felony should be considered as a favorable candidate
for alternative sentencing options in the absence of evidence to the contrary. A court shall
consider, but is not bound by, this advisory sentencing guideline. T.C.A. § 40-35-102(6).

        When the case involves a plea, our supreme court has held that it is proper for a trial
court to look behind a plea bargain and consider the “true nature of the offenses committed”
in setting a sentence within that range. State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn.
1983).

       The record before this court does not contain a transcript of the defendant’s guilty plea
hearing. In order to conduct an effective appellate review of sentencing, a transcript of the
guilty plea hearing is necessary. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App.
1999). The transcript of the guilty plea hearing is usually necessary in order for this court
to ascertain the facts and circumstances surrounding the offense. Indeed, the guilty plea
hearing is the equivalent of a trial. Id. at 843. In the absence of a transcript of a guilty plea
hearing, this court must generally conclude that the sentence imposed by the trial court was
correct. Id. at 844.

        The presentence report in the record contains a statement about the crimes from the
perspective of the State. The record also contains a transcript from the defendant’s petition
to suspend sentence which consists of the testimonies of the defendant and his father, who
asked the court to grant probation. In the trial court’s discussion of sentencing, the court
noted the defendant’s favorable social history and strong family support, factors that support
his request for probation. However, the trial court specifically found the defendant was not
a credible witness with regard to his version of events. The defendant testified that he was
trying to locate a pay phone to call the police just prior to the shooting. The court noted that
the victim’s vehicle had already passed the defendant when he fired a second shot into the
automobile, refuting his claim of self-defense. The court found the circumstances of the
crime to be egregious and extreme. The court found that, rather than contact the authorities
or his parents, the defendant armed himself with a powerful weapon and returned to the scene

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over the objections of his girlfriend. The court found the defendant’s attempt to elude police
even more egregious because he led them on a high speed chase through a residential area
before ultimately crashing into a police officer’s vehicle and seriously injuring an officer.
The court also concluded that the defendant had received a tremendous benefit through the
terms of the plea agreement and denied probation. The defendant’s failure to include a
transcript of the guilty plea causes this court to conclude that the sentence imposed by the
trial court was correct. Therefore, the defendant is not entitled to relief.

        Our review of the record before us supports a conclusion that the trial court did not
abuse its discretion in determining that a period of confinement was necessary based on the
circumstances of the offense. The defendant’s actions demonstrated that he intended to exact
deadly force on the victims for the events that proceeded the shooting in the parking lot of
McDonald’s. He lacked credibility in his assertion that he was looking for a phone to call
police because he could have easily phoned the police from the safety of his residence when
he retrieved the rifle. There was no need for him to return to the scene and engage the
victims. The defendant’s behavior justifies the conclusion that he intended to shoot the
victims. Further, if he was looking for the police to arrive, he would not have engaged them
in a high speed chase in a residential area. Given the actions of the defendant, the trial court
properly found that the circumstances of the crimes justified a denial of alternative
sentencing.

                                          Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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