State of Tennessee v. Darren Allan Vincent ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 18, 2011
STATE OF TENNESSEE v. DARREN ALLAN VINCENT
Appeal from the Circuit Court for Sequatchie County
No. 2009-CR-160 Thomas W. Graham, Judge
No. M2010-02468-CCA-R3-CD - Filed January 20, 2012
The Defendant, Darren Allan Vincent, was convicted upon pleading nolo contendere to
misdemeanor assault, sentenced to eleven months and twenty-nine days’ confinement, and
order to pay a $2500 fine. On appeal, the Defendant argues that the trial court erred by
denying probation and requiring him to serve seventy-five percent of the sentence before
becoming eligible for release. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS, J., joined. J EFFREY S. B IVINS, J., filed a concurring opinion.
Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Darren Allan Vincent.
Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
J. Michael Taylor, District Attorney General; and David Shinn, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
This case relates to the Defendant’s attacking the victim at her home. The record on
appeal does not contain a transcript of the plea hearing, but the record reflects that the
Defendant entered his nolo contendere plea on June 30, 2010. At the sentencing hearing,
Dwight Vincent, the Defendant’s stepbrother, testified that the Defendant came to his house
on June 17, 2009. Mr. Vincent lived with his girlfriend of seventeen years, Glenda
Pinkerton, and her nineteen-year-old daughter, the victim. When the Defendant arrived at
the house, Mr. Vincent was there with the victim and the victim’s boyfriend. Mr. Vincent
stated that he instructed the Defendant to leave several times but that the Defendant stayed
and repeatedly threatened Ms. Pinkerton, who was not present, and the victim. Mr. Vincent
told the victim’s boyfriend to call the police, and shortly thereafter, Mr. Vincent saw the
Defendant “beat the hell out of” the victim. Mr. Vincent said the Defendant “was over top
of her with . . . his knees on her shoulder. He was busting her in the mouth and saying, ‘How
do you like that, b***h?’” Once the Defendant stopped hitting the victim, he grabbed the
victim by the hair and began pounding her head against the pavement. Mr. Vincent said that
he picked up the handle of a mattock and hit the Defendant twice across the back but that the
Defendant did not stop attacking the victim until Mr. Vincent hit him across the side of the
head with the handle, which caused the Defendant to fall into a ditch.
The victim testified that after the Defendant threatened her and her mother, he kicked
her dog and poked her in the nose. She said she only remembered getting hit and falling to
the ground. She became unconscious at some point in the altercation. She said that as a
result of the assault, she had a knot on the back of her head, her eyes were “messed up,” her
front tooth was knocked out, and five teeth were knocked backwards. She had five root
canals to repair her teeth. She has also had memory problems since her injury. She said that
she no longer had health insurance and that she could not afford counseling or any other type
of follow-up or continuing treatment.
Glenda Pinkerton testified that when she arrived at the house, the victim had a large
gash in the back of her head and “they had to dig the rocks out of it.” She said that after the
attack, the victim no longer enjoyed going out with her friends and preferred to stay in her
room.
Amy Vincent, the Defendant’s wife, testified that she had been married to the
Defendant for four years and that they had three children. She said that the Defendant was
the only person in their family who was employed and that he earned $440 per week
performing automotive repairs. Although she was supposed to receive child support from
her former spouse, she had not received any. She said that the Defendant did not drink or use
drugs and that he never hit or abused her.
The trial court found that the following enhancement factors applied pursuant to
Tennessee Code Annotated section 40-35-114 (2010): (1) the Defendant had a previous
history of criminal convictions; (4) the victim was particularly vulnerable because of age or
physical or mental disability; (5) the Defendant treated the victim with exceptional cruelty
during the commission of the offense; and (6) the personal injuries inflicted upon the victim
were particularly great. No mitigating factors were found applicable. In denying probation
and an alternative sentence, the trial court found that confinement was necessary to protect
society by restraining the Defendant, who had a history of criminal conduct. The trial court
also found that confinement was necessary to avoid depreciating the seriousness of the
offense. The Defendant was sentenced to the maximum of eleven months and twenty-nine
-2-
days’ incarceration at seventy-five percent and ordered to pay a fine of $2500. This appeal
followed.
The Defendant contends that the trial court erred by denying probation and requiring
him to serve seventy-five percent of the sentence in incarceration before becoming eligible
for release. The State contends that the trial court properly sentenced the Defendant. We
note, however, that the Defendant has failed to include a transcript of the plea hearing in the
record and hold that this failure precludes a de novo review of his sentence and requires this
court to presume that the evidence supported the sentence.
In conducting a de novo review, we must consider (1) any evidence received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2010); see
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236
(Tenn. 1986).
On appeal, the Defendant was required to prepare a record that conveyed a fair,
accurate, and complete account of what transpired with respect to those issues that are the
bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
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). The evidence supporting a plea and finding
of guilt is usually submitted by proffer or stipulation. “For those defendants who plead
guilty, the guilty plea hearing is the equivalent of trial . . . .” State v. Keen, 996 S.W.2d 842,
843 (Tenn. Crim. App. 1999).
This court considers the plea hearing transcript to be vital to a de novo review and
potential resentencing by this court as required by law. See, e.g., State v. Alfred Gettner, No.
E2010-00104-CCA-R3-CD, Sullivan County, slip op. at 6 (Tenn. Crim. App. Aug. 19, 2011);
State v. Felix Tamayo, No. M2010-00800-CCA-R3-CD, Davidson County, slip op. at 3-4
(Tenn. Crim. App. May 16, 2011); State v. Gary M. Carter, No. M2006-02341-CCA-R3-CD,
DeKalb County, slip op. at 4 (Tenn. Crim. App. Feb. 21, 2008); see also T.C.A. § 40-35-401
(2010). The “‘failure to include the transcript of the guilty plea hearing in the record
prohibits the court’s conducting a full de novo review of the sentence under [Tennessee Code
Annotated section] 40-35-210(b).’” State v. Farmer, 239 S.W.3d 752, 756 (Tenn. Crim. App.
2007) (quoting State v. Shatha Litisser Jones, No. W2002-02697-CCA-R3-CD, Madison
County, slip op. at 4 (Tenn. Crim. App. July 14, 2003)). No matter how developed a record
-3-
may appear, we will never know the full extent unless the plea transcript is included. “In the
absence of an adequate record on appeal, this court must presume that the trial court’s rulings
were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim.
App. 1991); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). The
Defendant is not entitled to relief.
In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
-4-