         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 18, 2004

               STATE OF TENNESSEE v. JIMMY RAY DOCKERY

                     Appeal from the Criminal Court for Sullivan County
                           No. S45,847   Phyllis H. Miller, Judge



                   No. E2004-00696-CCA-R3-CD - Filed November 30, 2004


The defendant, Jimmy Ray Dockery, appeals the Sullivan County Criminal Court’s decision to deny
probation on his two-year sentence for attempt to fraudulently obtain a controlled substance. Based
on our review of the record, we affirm the judgment.

               Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

John D. Parker, Jr., Kingsport, Tennessee, for the Appellant, Jimmy Ray Dockery.

Paul G. Summers, Attorney General & Reporter; Kathy D. Asligner, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Barry P. Staubus and Carey Taylor, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

                                              OPINION

                The defendant pleaded guilty to an attempt to fraudulently obtain a controlled sub-
stance, a Class D felony. See Tenn. Code Ann. § 53-11-402(a)(3), (b)(1) (Supp. 2003). Based upon
the allegations set forth in the indictment, the offense emanated from the defendant’s attempt to
obtain Lortab via the use of a bogus prescription. The defendant agreed to a $2,000 fine and a two-
year sentence. The defendant and the state agreed to submit the determination of the manner of
service of the sentence to the trial court. Following a sentencing hearing, the trial court ordered the
sentence to be served in the Department of Correction. On appeal, the defendant claims that the trial
court erred in failing to grant probation. We disagree and affirm the judgment.

                When there is a challenge to the manner of service of a sentence, it is the duty of this
court to conduct a de novo review of the record with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This presumption is “con-
ditioned 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). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the
event the record fails to demonstrate the required consideration by the trial court, review of the
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. In the present case, the trial court accepted the range classification
and length of sentence negotiated by the parties, and the court merely determined the manner of
service of the two-year sentence. In making this determination, the court is required to consider (1)
the evidence, if any, received at the trial and the 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 involved, (5) evidence and information offered by the parties
on the enhancement and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-210(a), (b); -35-103(5) (2003).

                The defendant is a standard offender convicted of a Class D felony. As such, he is
presumed to be a favorable candidate for alternative sentencing options in the absence of evidence
to the contrary. See id. § 40-35-102(6) (2003). However, this presumption does not entitle all
offenders to an alternative sentence; rather, it requires that sentencing issues be determined by the
facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.
Crim. App. 1987). The presumption of favorable candidacy for alternative sentencing may be
rebutted, for instance, by a showing that confinement may be necessary to “protect society by
restraining a defendant who has a long history of criminal conduct” or that “measures less restrictive
than confinement have frequently or recently been applied unsuccessfully to the defendant.” See
Tenn. Code Ann. § 40-35-103(1)(A), (C) (2003).

                In the present case, the defendant claims that he should have been granted full
probation. To be sure, he was eligible for probation. See id. § 40-35-306(2) (2003). However, the
determination of entitlement to full probation necessarily requires a separate inquiry from that of
determining whether a defendant is entitled to a less beneficent alternative sentence. See State v.
Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1 (Tenn. 2000). A defendant is required to establish his “suitability for full
probation as distinguished from his favorable candidacy for alternative sentencing in general.” State
v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App. 1999); see Tenn. Code Ann. § 40-35-303(b)
(2003); Bingham, 910 S.W.2d at 455-56. A defendant seeking full probation bears the burden of
showing that probation will “subserve the ends of justice and the best interest of both the public and
the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other
grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).



                                                 -2-
                 In the present case, we are hampered in conducting our prescribed de novo review of
the sentencing determination because the defendant failed to include in the appellate record the
transcript of the plea submission hearing. See, e.g., State v. Linda Gail Philpot, No. M2000-01999-
CCA-R3-CD, slip op. at 2 n.2 (Tenn. Crim. App., Nashville, May 2, 2001); State v. Gibson, 973
S.W.2d 231, 244 (Tenn. Crim. App. 1997); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.
1987). This transcript would have been instructive because during the plea colloquy the court
receives a statement of the facts supporting the proposed conviction. See Tenn. R. Crim. P. 11(f).
A statement of facts rendered pursuant to Rule 11(f) would be helpful in understanding the nature
and circumstances of the offense, and as noted above, information about the nature and
circumstances of the offense is typically essential in adjudicating a manner-of-service sentencing
issue. See Tenn. Code Ann. §§ 40-35-210(b)(4); -35-103(1)(B) (2003). Thus, in the absence of a
full and fair record revealing the bases for the appeal, we must presume the correctness of the trial
court’s determination. State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). The rule is apt
here, where no testimony was presented at the sentencing hearing. The state relied upon a
presentence report, but the trial judge apparently also relied upon personal, historical experience with
the case. We surmise that some of that experience was gained during the plea submission hearing,
the transcript of which we do not have.

                 That said, we observe that the trial court duly referred to, and relied upon, the
sentencing principles and guidelines. As such, the defendant’s appeal is also hampered by the
statutory presumption of correctness of the sentencing determination. See Tenn. Code Ann. § 40-35-
401(d) (2003). The denial of probation was, in part, based upon the defendant’s prior criminal
record and a previous revocation of his probation on a felony conviction. The defendant received
1997 convictions of possession of a firearm by an intoxicated person, public intoxication, three
counts of theft, and five counts of attempt to commit theft. Significantly, the defendant was also
convicted in 1997 of an attempt to fraudulently obtain a controlled substance, the same type of
offense that is the basis of the sentence now under review. In that 1997 conviction, the defendant
received a probated two-year sentence. The resulting five-year probation was revoked on November
11, 2002, based upon the 2001 filing of drug charges and failure to notify the probation officer of
the defendant’s change of address.

                Although the defendant enjoyed the presumption of favorable candidacy for
alternative sentencing, the record reveals two solid bases for overcoming the presumption: (1) that
confinement is necessary to restrain a defendant who has a long history of criminal conduct and (2)
that measures less restrictive than confinement have recently been applied unsuccessfully to the
defendant. See Tenn. Code Ann. § 40-35-103(1)(A), (B) (2003). Thus, based on the record that is
before us, we fail to see any basis that overcomes the statutory presumption of the correctness of the
denial of an alternative sentence.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE


                                                  -3-
