State of Tennessee v. Sunni Adkins - Concurring ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 5, 2008
STATE OF TENNESSEE v. SUNNI ADKINS
Appeal from the Criminal Court for Lewis County
Nos. 6708 & 6730 Jeffrey S. Bivins, Judge
No. M2007-01355-CCA-R3-CD - Filed July 3, 2008
JOSEPH M. TIPTON , P.J., concurring.
I concur in the results reached in the majority opinion. However, I would affirm the trial
court because of the defendant’s failure to include the guilty plea hearing transcript in the record and
the attendant presumption that the trial court’s determinations were correct. See State v. Oody, 823
S.W.2d 554 (Tenn. Crim. App. 1991) (holding trial court’s ruling presumed correct in the absence
of an adequate record on appeal).
The 1989 Sentencing Act, as amended, requires a sentencing court to consider evidence
received at the trial. T.C.A. § 40-35-210(b)(1). With a guilty plea involving a felony, the evidence
supporting the plea and finding of guilt is usually submitted by stipulation. This court has
considered the guilty plea hearing transcript to be vital to a de novo review and potential
resentencing by this court as required by law. See T.C.A. § 40-35-401. No matter how developed
a record may appear, we will never know the full extent unless the guilty plea transcript is included.
I do not believe this court is required to analyze an incomplete record to determine the merit of a
sentencing complaint.
As a matter of legal analysis, though, I must express my disagreement with this court’s
affirming application of enhancement factor (4), that the children were particularly vulnerable. In
State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993), in overturning the factor’s application to rape
victims, ages 4, 5, and 12, our supreme court stressed that the factor “relates more to the natural
physical and mental limitations of the victim than merely to the victim’s age.” The court cast being
particularly vulnerable in terms of “incapable of resisting, summoning help, or testifying against the
perpetrator.” Id. Photographs of the victims in the record in the present case indicate nothing
regarding particular vulnerability. The trial court made and the majority opinion makes assumptions
about what the victims would not or could not do unless they were older and stronger, but the
evidence is not in the record to find they were particularly vulnerable.
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JOSEPH M. TIPTON, PRESIDING JUDGE