Opinion
No. M2008-01872-CCA-R3-CD.
Assigned on Briefs April 22, 2009.
Filed May 11, 2009.
Appeal from the Circuit Court for Montgomery County; No. 40700142; Michael R. Jones, Judge.
Judgment of the Circuit Court Affirmed.
Michael T. Pugh, Clarksville, Tennessee, for the appellant, Jonathan Adam Haithcoat.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; John W. Carney, District Attorney General; and Steven Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.
David H. Welles, J., delivered the opinion of the court, in which Jerry L. Smith and Robert W. Wedemeyer, JJ., joined.
OPINION
The Defendant, Jonathan Adam Haithcoat, was charged with one count of rape of a child. He was convicted, upon a plea of nolo contendere, of the lesser charge of attempted aggravated sexual battery. After a sentencing hearing, he was sentenced to ten years in the Department of Correction. He now appeals the trial court's denial of alternative sentencing. After our review, we affirm.
Factual Background
The record in this case contains only the transcript of the Defendant's July 15, 2008 sentencing hearing. The evidence at sentencing established that the conduct underlying his plea occurred in July 2005. The victim's parents both testified regarding the emotional stress the Defendant caused both the victim and them. The victim corroborated this testimony but was not asked to offer a detailed account of the Defendant's offense.
The victim's father noted that the Defendant lived less than a mile from the victim and that they would feel compelled to move if the Defendant were released. The Defendant's father, however, testified that, if he were released, the Defendant would live with a friend eight to ten miles away from the victim until he could move to a relative's home in Buffalo, New York. Other members of the Defendant's family testified to his good character, and they acknowledged his past problems with alcohol that he had attempted to address in a rehabilitation clinic. The Defendant expressed remorse for his actions.
The sentencing court ordered that the Defendant serve his ten-year sentence in the Department of Correction. He now appeals that decision.
Analysis
On appeal, the party challenging the sentence imposed by the trial court has the burden of establishing that the sentence is erroneous.See Tenn. Code Ann. § 40-35-401, Sentencing Comm'n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges the length, range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the record 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, this presumption "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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial court failed to consider the sentencing principles and all relevant facts and circumstances, then review of the challenged sentence is purely de novo without the presumption of correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.
In conducting a de novo review of a sentence, this Court must consider (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) evidence and information offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the defendant's own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
The Defendant in this case was convicted of a Class C Felony. Effective June 7, 2005, our legislature amended Tennessee Code Annotated section 40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a Class C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for alternative sentencing. Our sentencing law now provides that a defendant who does not possess a criminal history showing a clear disregard for society's laws and morals, who has not failed past rehabilitation efforts, and who "is 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." Tenn. Code Ann. § 40-35-102(5), (6) (emphasis added). No longer is any defendant entitled to a presumption that he or she is a favorable candidate for alternative sentencing.Carter, 254 S.W.3d at 347.
The following considerations provide guidance regarding what constitutes "evidence to the contrary":
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. . . .
Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles of sentencing reflect that the sentence should be no greater than that deserved for the offense committed and should be the least severe measure necessary to achieve the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider the defendant's potential for rehabilitation or treatment in determining the appropriate sentence. Tenn. Code Ann. § 40-35-103(5).
The record on appeal includes the Defendant's presentence report and sentencing hearing transcript. The sentencing court, in its ruling, noted that the Defendant had been convicted on October 13, 2004 of a drug offense for which he received eleven months and twenty-nine days of probation. He was thus still on probation when the instant offense occurred in July 2005. This triggered Tennessee Code Annotated section 40-35-103(1)(C), which states that sentences involving confinement should in part be based on a consideration of whether "[m]easures less restrictive than confinement have . . . recently been applied unsuccessfully to the defendant." The sentencing court also concluded that "[c]onfinement [was] necessary to avoid depreciating the seriousness of the offense" and "to provide an effective deterrence to others likely to commit similar offenses," Tennessee Code Annotated section 40-35-103(1)(B), noting that it saw cases involving "either child rape or an aggravated sexual battery involving a child" on nearly every arraignment day. The sentencing court ordered confinement based on these two findings.
Tennessee Code Annotated section 40-35-210(f) states that "[a] sentence must be based on evidence in the record of the trial." The Defendant, who pleaded nolo contendere, has a duty on appeal to "prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal."State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). Although the Defendant appeals the sentencing court's denial of alternative sentencing, the record does not contain a transcript of his guilty plea hearing. The facts and circumstances of the offense were not developed during the sentencing hearing. "Where the record is incomplete and does not contain a transcript of the proceedings relevant to an issue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue." Id. at 560-61 (citingState v. Roberts, 755 S.W.2d 833, 836 (Tenn.Crim.App. 1988)). We have no way of knowing what facts were presented at the Defendant's guilty plea hearing, and thus cannot conduct a review of the sentencing court's determination that alternative sentencing would have depreciated the seriousness of the Defendant's offense. We must therefore presume the sentencing court's determinations were correct. See Roberts, 755 S.W.2d at 836. This issue is without merit.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgment of the sentencing court.