             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    Assigned on Brief June 20, 2000

                     STATE OF TENNESSEE v. CHARLES S. JONES

               Appeal as of Right from the Circuit Court for Montgomery County
                       No. 38178, 38452     John H. Gasaway, III, Judge



                      No. M1999-02335-CCA-R3-CD - Filed November 9, 2000


On October 30, 1997, the defendant offered guilty pleas to six counts of aggravated burglary, five
counts of theft over one thousand dollars, one count of theft under one thousand dollars, and one
count of possession of an illegal weapon. After a December sentencing hearing, the trial court
ordered the defendant placed on probation and granted him post-trial diversion for a period of six
years during which he was to comply with a variety of requirements. Subsequently, separate
affidavits were filed in July and September of 1998 alleging that the defendant had violated the terms
of his probation. Following a March 1999 hearing concerning these allegations, the trial court
entered judgment on the defendant’s aforementioned twelve guilty pleas and sentenced him as a
Range I Standard Offender to serve an effective sentence of four years for the burglary and theft
charges consecutively to eighteen months for the possession of an illegal weapon offense. On
appeal, the defendant claims that the trial court erred by (1) failing to consider him for alternative
sentencing; (2) improperly enhancing his possession of an illegal weapon sentence and one of his
aggravated burglary sentences; and (3) ordering the possession of an illegal weapon charge to run
consecutively. 1 After having reviewed the record and applicable authorities, we find these issues to
be without merit and, therefore, affirm the trial court’s sentence.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES, and JOHN
EVERETT WILLIAMS, JJ., joined.

Russell A. Church, Clarksville, Tennessee, for the appellant, Charles S. Jones.




         1
          The issues are listed somewhat differently from the defendant’s brief as his “Statement of the Issues” did not
mention the alleged error in denying alternative sentencing or enhancing the possession of an illegal weapon charge.
However, these arise in his argument and will be considered in this opinion.
Paul G. Summers, Attorney General & Reporter, Clinton J. Morgan,. Assistant Attorney General,
Nashville, Tennessee, and John Carney, District Attorney General, Lance Baker, Assistant District
Attorney, Clarksville, Tennessee for the Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        In October of 1997, the defendant stood charged with a total of sixteen offenses stemming
from three separate indictments. On the thirtieth of that month, he tendered guilty pleas to six counts
of aggravated burglary, five counts of theft over one thousand dollars, and one count of possession
of an illegal weapon. Following a December 1997 sentencing hearing, he received post-trial
diversion and was placed on probation for a period of six years. See Tenn. Code Ann. § 40-35-313.
        In July and September of 1998, the defendant’s probation supervisor filed two affidavits
alleging that the defendant had failed to comply with numerous specific conditions of his probation.
These alleged violations involved two subsequent misdemeanor arrests; a positive test for marijuana
usage; at least twelve occasions on which the defendant was not present for curfew; unperformed
public service hours; and failure to provide proof of obtaining in-patient drug and alcohol treatment,
proof of attending Alcoholics Anonymous or Narcotics Anonymous, and proof of paying costs.
        After a combined revocation and sentencing hearing, the trial court revoked the defendant’s
post-trial diversion and accepted his twelve previously offered guilty pleas. The trial court then
sentenced the defendant as a Range I Standard Offender to two years for each of the five theft over
one thousand dollar convictions, three years for five of the six aggravated burglary convictions, and
four years for the sixth aggravated burglary conviction. In addition, the trial court ordered all of
these sentences to run concurrently with each other but consecutively to the eighteen months the
defendant received for the remaining possession of an illegal weapon conviction. Through this
appeal the defendant raises essentially three challenges to this sentence. As aforementioned, he
alleges that the trial court erred in (1) failing to consider him as an appropriate candidate for
alternative sentencing; (2) improperly enhancing one of his aggravated burglary sentences and his
possession of an illegal weapon sentence; and (3) ordering the possession of an illegal weapon
sentence to run consecutively to those received for the eleven other convictions.

                                        Standard of Review

        "When reviewing sentencing issues ... including the granting or denial of probation and the
length of sentence, 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." Tenn. Code Ann. § 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


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alternative arguments, the nature and character of the offense, the enhancing and mitigating factors,
and the defendant's statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at
169. The defendant has “the burden of demonstrating that the sentence is improper." Id.
        Furthermore, as the appellant, the defendant bore the duty of providing a sufficiently
complete record for appeal. See Tenn. R. App. 24(b). When a guilty plea is involved, this Court has
held on more than one occasion that the guilty plea hearing transcript is frequently if not always
necessary to properly review the sentence imposed. E.g., State v. Keen, 996 S.W.2d 842, 844 (Tenn.
Crim. App. 1999). Yet, this defendant failed to furnish the Court with the transcript of his guilty
plea hearing on the underlying twelve offenses. Because of the paucity of the record with respect
to some of the crimes, we find the inclusion of this transcript necessary for a complete picture of the
defendant’s criminal acts. Without this potential information, the record is incomplete, and we must
presume that the trial court’s sentence was appropriate. See id; State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991). Further, based on the meager record before the Court, we find the
defendant’s allegations to be without merit for the following reasons.

                                      Alternative Sentencing

         Turning first to the defendant’s claim that the trial court erred in not considering him for
alternative sentencing, we find that he failed to prove himself suitable for this option. While the
defendant may believe that he is entitled to a presumption of suitability for such sentencing, see
Tenn. Code Ann. § 40-35-102(5), (6), it is doubtful that this presumption would apply to a defendant
being sentenced immediately following the revocation of his or her judicial diversion. Furthermore,
a trial court may properly consider confining a defendant when such is deemed “necessary to protect
society by restraining a defendant who has a long history of criminal conduct” or when “[m]easures
less restrictive than confinement have frequently or recently been applied to the defendant.” Tenn.
Code Ann. § 40-35-103(1)(A), (C). Although the transcript does not record any statement by the
trial court explaining its decision to order incarceration, our review reveals that the defendant’s
behavior falls within the latter guidelines. Thus, even if the presumption applied, it has been
rebutted.
         To support this conclusion, we note that the defendant has a history of flouting the law and
evinces little to no desire to alter such behavior. For example, the pre-sentence report contains his
admission that he has experienced problems with alcohol and drug abuse for over a decade yet even
when ordered to seek help by the trial court, he failed to offer proof that he did so. Furthermore,
while on probation, he failed a drug screen and thereafter admitted to having used marijuana during
this time. The defendant also could not manage to abide by a curfew and was cited for over twelve
violations thereof. In addition, he was convicted of two more crimes. Although these convictions
involved misdemeanor offenses, one was for unlawfully carrying a weapon. Given his conviction
for possessing a sawed off shotgun and his having been armed at the time he encountered a mother
and her two young children during an aggravated burglary, this conduct seems particularly
problematic. Almost incomprehensibly, he chose to act as above outlined when the possible
consequences involved the trial court’s acceptance of his twelve previously tendered guilty pleas
which would result in twelve felony convictions on his record and the very real likelihood of losing
his liberty.


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        Faced with the chance to perform as an appropriate candidate for alternative sentencing, the
defendant failed in a host of ways to achieve this end. Therefore, applying the sentencing principles
set out above, we find that this defendant was not entitled to alternative sentencing irrespective of
whether the presumption in favor of such a sentence is applicable in this case. This issue is without
merit.

                                           Sentence Length
        Moving to the trial court’s alleged errors in enhancing two of the defendant’s sentences, we
determine that sufficient support exists to leave both intact. With respect to the sixth aggravated
burglary offense, the trial court found that “[t]he crime was committed under circumstances under
which the potential for bodily injury was great.”See Tenn. Code Ann. §40-35-114(16). The court
then utilized this factor to increase the punishment within the range to four years. Such application
may well have been erroneous. See State v. Williams, 920 S.W.2d 247, 261 (Tenn. Crim. App.
1995); State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). Nevertheless, the defendant’s
conduct falls under another statutory enhancement factor; thus, any error of this type would be
harmless. See Tenn. R. Crim. P. 52(a).
        The enhancement factor we find more clearly appropriate involves the defendant’s “previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range.” See Tenn. Code Ann. §40-35-114(1). In support of this factor, we note that the
defendant admitted to having abused a variety of narcotics including marijuana, cocaine, and LSD.
His drug usage extends over a decade having begun when he was twelve. This type of activity is
relevant to the application of Tennessee Code Annotated §40-35-114(1). See, e.g., State v. Moss,
13 S.W.3d 374, 388 (Tenn. Crim. App. 1999); State v. Alexander, 957 S.W.2d 1, 7 (Tenn. Crim.
App. 1997); State v. Beard, 818 S.W.2d 376, 379-380 (Tenn. Crim. App. 1991). Additionally, as
noted above, the defendant was caught with marijuana in his system during his period of diversion.
Furthermore, he had the two aforementioned misdemeanor convictions at the time of sentencing.
This enhancement factor could have been applied to all of the defendant’s convictions at the March
1999 sentencing hearing and, therefore, may be used to enhance both of the sentences challenged by
the defendant.2
        Our review then leads us to consider mitigating factors. Through his brief, the defendant
does not argue that any mitigating factors are present for these two offenses, and we conclude from
the record provided that none are applicable. See Tenn. Code Ann. § 40-35-113.
        In further examining these sentences, we note that aggravated burglary is a Class C felony
and possession of an illegal weapon is a Class E felony. As a Range I offender, the defendant faced
between three and six years for the aggravated burglary and between one and two years for the
possession of an illegal weapon offense. See Tenn. Code Ann. §§ 39-14-403, 39-17-1302, 40-35-
112 (a)(3),(5). Having deemed one enhancement factor and no mitigating factors applicable to these
two offenses, we find the challenged sentence lengths appropriate. This issue is meritless.




       2
           The trial court did not cite any applicable enhancement factor for the possession of an illegal weapon charge.

                                                          -4-
                                      Consecutive Sentencing

         Finally, the defendant alleges that his effective four year sentence for the aggravated
burglaries and thefts over one thousand dollars should not have been set to run consecutively to his
possession of an illegal weapon sentence. We disagree.
         Consecutive sentencing is governed by Tennessee Code Annotated § 40-35-115. A trial
court may order sentences to run consecutively if it finds that one or more of the statutory criteria
exists by a preponderance of the evidence. Tenn. Code Ann. § 40-35-115(b); State v. Black,
924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). At the close of the sentencing hearing, the trial
court stated its basis for the imposition of consecutive sentences was the defendant’s extensive
criminal activity.
         In this case we agree that “[t]he defendant is an offender whose record of criminal activity
is extensive.” See Tenn. Code Ann. § 40-35-115(b)(2). To support this factor, we briefly revisit
some of the conduct above-outlined. We may continue to take into consideration not only criminal
convictions but also criminal conduct not resulting in a charge or conviction. See, e.g., State v.
Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992) At the time of sentencing, the defendant
had two misdemeanor convictions. Though, standing alone, these convictions do not seem to come
close to meeting the requirement for consecutive sentencing, we must remember that the defendant
admitted to over a decade of drug abuse involving such substances as marijuana, cocaine, and LSD.
Such candor might have worked in his favor had he not also tested positive for the use of marijuana
while on diversion and failed to comply with the court’s order to provide proof of his attempt to
address this problem. The number of potential offenses represented by his conduct is quite extensive.
This Court has previously concluded that this factor alone is sufficient to justify consecutive
sentencing. See, e.g., State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997); Black, 924
S.W.2d at 917; Cummings, 868 S.W.2d at 667. For the foregoing reasons, we find the defendant’s
last allegation of error to also be without merit.
         In conclusion, our review reveals the defendant is entitled to no relief from the issues raised.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                        ___________________________________
                                                        JERRY SMITH, JUDGE




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