State v. Barry Jordan ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1997 October 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9607-CC-00236
)
Appellee, )
) DYER COUNTY
)
V. )
) HON. JOE G. RILEY, JUDGE
BARRY JORDAN, )
)
Appe llant. ) (VOLUN TARY M ANSLAU GHTE R)
FOR THE APPELLANT: FOR THE APPELLEE:
G. STE PHE N DAV IS JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
208 N. Mill Avenue
P.O. Box 742 CLINTON J. MORGAN
Dyersburg, TN 38025-0742 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
C. PHILLIP BIVENS
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Barry Jordan, appeals as of right pursuant to Rule 3 of the
Tennessee Rule s of App ellate P roced ure. Fo llowing a jury tria l in the C ircuit
Court of Dyer County, the Defenda nt was found guilty of voluntary manslaughter
and was s enten ced to five (5) ye ars in prison as a Ran ge I stand ard offen der. In
his sole issue on appeal, Defendant argues that the sentence imposed by the trial
court wa s exces sive. W e affirm the judgm ent of the tria l court.
When an accused challenges the length, range, or the manner of service
of a sentence, this court has a duty to conduct a de novo review of the sentence
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. § 4 0-35-40 1(d). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W.2d
166, 169 (T enn. 1991 ).
In conducting a de novo review of a sentence, this court must consider: (a)
the eviden ce, if an y, rece ived at th e trial an d the s enten cing hearing; (b) the
presentence report; (c) the principles of sentencing and arg umen ts as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct
involved; (e) any statutory mitigating or enhancement factors; (f) any statement
that the defen dant m ade on his own b ehalf; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,
and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
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If our review reflects that the trial court followed the statutory sentencing
procedure, imposed a lawful sentence after having given due consideration and
proper weight to the factors and p rincipa ls set out under the sentencing law, and
that the trial court's findings of fact are adequately supported by the record, then
we may no t modify th e sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
Voluntary manslaughter is a Class C felony and a Range I sentence is not
less than three (3) years nor more than six (6) years. Tenn. Code Ann. §§ 39-13-
211(b) and 40-35-112 (a)(3). The pres umptive sentence for a C lass C felony is
the minimum in the range if there are no enhancement or mitigating factors.
Tenn. Code Ann. § 40-35-210(c). Should the trial court find mitigating and
enhancement factors, it must start at the minimum sentence in the range and
enhance the sentence based upon any applicable enhancement factors, then
reduce the sentence based upon any appropriate mitigating factors. Tenn. Code
Ann. § 40-35-210(e). In applying a five year sentence, the trial court in this case
used the following two enha ncem ent factors : (1) the victim was trea ted with
exceptional cruelty; and (2) Defendant used a deadly weapon to commit the
offense. See Tenn. Code Ann. § 40-35-11 4(5) and (9). Th e trial court also found
the following two misc ellaneous m itigating factors applicab le: (1) no prior felony
conviction; and (2) a relatively good work record. See Tenn. Code Ann. § 40-35-
113(13 ).
The weight given to each factor is within the trial court’s discretion
provided that the record suppo rts its findings and it complies with the Sentencing
Act. See State v. Mars hall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 19 93), perm.
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to appeal denied (Ten n. 199 3). Th e trial co urt, how ever, s hould mak e spe cific
findings on the record which indicate his application of the sentencing principles.
Tenn. Code Ann. §§ 40-35-209 and -210.
With regard to the enh ancem ent and mitigating factors, this Court must
defer to the findings of the trial judge since no transcript of the trial proceedings
is contained in the record. The re is no proof before this Court as to the nature
of this crime or how it was committed. We are neither aware o f the spec ific facts
that led the trial judge to find that the crime was especially cruel, nor are we
aware of what type of weapon this Defendant used in the commission of the
crime. This Court must make decisions based on matters within the record and
not outside of the reco rd. Wh en a pa rty seeks appellate review the re is a duty
to prepare a record which conveys a fair, accurate and complete account of what
transpired with respe ct to the issues forming the basis of the appeal. If the record
is incomplete, this Court is precluded from considering the issues ra ised. W e
must conclusively presume that the determination of the trial court was correct
regarding the weight to be afforded both the enhance ment factors and mitigating
factors. State v. Locust, 914 S.W.2d 554, 557 (Tenn . Crim. A pp.199 5); see also
State v. Matthews, 805 S.W .2d 776 , 784 (T enn. C rim. App . 1990).
In reviewing the sentencing considerations of Tennessee Code Annotated
section 40-35-103, the trial court found that in this case confinement was
necessa ry to avoid deprec iating the seriousn ess of “this particular hom icide.” It
is clear that the trial court made its decision based on th e particula r facts
surrounding this particular crime. Again, since the record on appeal does not
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include the trial transcript and is for that reason incomplete, this Court must
conclus ively presu me tha t the judgm ent of the tria l court is corre ct.
We therefore affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID G. HAYES, Judge
___________________________________
JERRY L. SMITH, Judge
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