State of Tennessee v. Brandon Shawn Jones ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 20, 2004
STATE OF TENNESSEE v. BRANDON SHAWN JONES
Direct Appeal from the Criminal Court for Knox County
No. 74736 Richard R. Baumgartner, Judge
No. E2003-02050-CCA-R3-CD
May 13, 2004
The defendant, Brandon Shawn Jones, pled guilty to burglary of a motor vehicle and possession of
burglary tools. The Knox County Criminal Court ordered the defendant to serve an effective two-
year sentence with 120 days in confinement followed by probation. The defendant appeals the denial
of total probation. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.
Robert W. White, Maryville, Tennessee, for the appellant, Brandon Shawn Jones.
Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Paula R. Ham, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
I. ABSENCE OF GUILTY PLEA TRANSCRIPT
The facts and circumstances of the offense were important to the trial court’s sentencing
determinations; however, the transcript of the guilty plea proceeding is absent from the record. Since
we deem the guilty plea proceeding material to the determination of the issue presented, our proper
course of action ordinarily is to sua sponte presume the trial court’s decision is correct. State v.
Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999); see also State v. Coolidge, 915 S.W.2d 820,
826-27 (Tenn. Crim. App. 1995) (specifically stating that the absence of a portion of the record
relating to sentencing requires the court to presume the sentence is correct). By failing to produce
an adequate record, a defendant generally waives any claim that the conclusions of the trial court are
incorrect. See State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). However, because the
available record amply supports the sentencing decision of the trial court, we will address the merits
of the issue raised by the defendant.
II. SENTENCING HEARING
The defendant’s presentence report was admitted into evidence during the sentencing hearing.
The presentence report reflects the defendant has two convictions for simple assault and one
conviction each for casual exchange of a controlled substance, simple possession of marijuana, and
possession of burglary tools. The defendant was convicted on all of these offense after he had been
arrested for the present offenses but prior to sentencing. The assault offenses were committed prior
to his arrest for the present offenses, while the remaining offenses were committed following his
arrest for the present offenses.
III. STANDARD OF REVIEW
An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The
Sentencing Commission Comments to this section of the statute indicate the defendant bears the
burden of establishing the sentence is improper. When the trial court follows the statutory sentencing
procedure and gives due consideration and proper weight to the factors and principles relevant to
sentencing, this court may not disturb the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991).
IV. TOTAL PROBATION
The defendant contends the trial court erred in denying total probation. A defendant is
eligible for probation if the sentence received by the defendant is eight years or less, subject to some
statutory exclusions. Tenn. Code Ann. § 40-35-303(a). An especially mitigated or standard offender
convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative
sentencing in the absence of evidence to the contrary. Id. § 40-35-102(6). However, although a
defendant may be presumed to be a favorable candidate for alternative sentencing, the defendant has
the burden of establishing suitability for total probation. Id. § 40-35-303(b); State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). In determining whether to grant or deny probation, a
trial court should consider the circumstances of the offense, the defendant’s criminal record, the
defendant’s social history and present condition, the need for deterrence, and the best interest of the
defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925
S.W.2d 237, 244 (Tenn. Crim. App. 1995).
Upon examining the record, we conclude the defendant has not met his burden of establishing
his entitlement to total probation. When the defendant was arrested for the present offenses, he had
two pending assault charges for which he was convicted prior to sentencing in the present case.
Following his arrest, the defendant continued to commit criminal offenses, including another offense
for possession of burglary tools. The defendant’s continued criminal activity negatively reflects
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upon his potential for rehabilitation. Furthermore, because the defendant was convicted of these
other five offenses prior to the sentencing hearing for the instant offenses, they may be considered
for purposes of sentencing. See State v. Jordan, 116 S.W.3d 8, 24 (Tenn. Crim. App. 2003) (defining
previous criminal convictions for enhancement purposes). The defendant’s prior criminal
convictions alone are sufficient to justify the denial of total probation.
We conclude the trial court did not err in requiring the defendant to serve 120 days of
incarceration as part of his two-year sentence. This issue is patently without merit.
Accordingly, we affirm the sentencing determinations of the trial court.
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JOE G. RILEY, JUDGE
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